SUPREME
COURT OF CANADA
Between:
Loyola
High School and John Zucchi
Appellants
and
Attorney
General of Quebec
Respondent
- and -
Canadian
Council of Christian Charities, Evangelical Fellowship of Canada,
Christian
Legal Fellowship, World Sikh Organization of Canada,
Association
of Christian Educators and Schools Canada,
Canadian
Civil Liberties Association, Catholic Civil Rights League,
Association
des parents catholiques du Québec, Faith and Freedom Alliance,
Association
de la communauté copte orthodoxe du grand Montréal,
Faith,
Fealty and Creed Society, Home School Legal Defence Association of Canada,
Seventh-day Adventist Church in Canada, Seventh-day Adventist Church — Quebec
Conference, Corporation archiépiscopale catholique romaine de Montréal and
Archevêque
catholique romain de Montréal
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 81)
Joint
Reasons Concurring Partially in Result:
(paras. 82 to 165):
|
Abella J. (LeBel, Cromwell and
Karakatsanis JJ. concurring)
McLachlin C.J. and Moldaver J. (Rothstein
J. concurring)
|
![](/scc-csc/scc-csc/en/14703/282322/res.do)
Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613
Loyola High School and
John Zucchi Appellants
v.
Attorney General of Quebec Respondent
and
Canadian Council of Christian Charities,
Evangelical Fellowship of Canada,
Christian Legal Fellowship,
World Sikh Organization of Canada,
Association of Christian Educators and
Schools Canada,
Canadian Civil Liberties Association,
Catholic Civil Rights League,
Association des parents catholiques du
Québec,
Faith and Freedom Alliance,
Association de la communauté copte
orthodoxe du grand Montréal,
Faith, Fealty and Creed Society,
Home School Legal Defence Association of
Canada,
Seventh-day Adventist Church in Canada,
Seventh-day Adventist Church — Quebec
Conference,
Corporation archiépiscopale catholique romaine
de Montréal and
Archevêque catholique
romain de Montréal Interveners
Indexed as: Loyola High School v. Quebec (Attorney General)
2015 SCC 12
File No.: 35201.
2014: March 24; 2015: March 19.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for quebec
Administrative
law — Judicial review — Standard of Review — Ministerial discretion — Mandatory
ethics and religious culture program — Private denominational school proposing
alternative program — Request for exemption denied by Minister — Proper
approach to judicial review of discretionary administrative decisions engaging
Charter protections — Whether Minister’s
decision proportionately balanced religious freedom with statutory objectives
of mandatory program — Regulation respecting the application of the Act
respecting private education, CQLR, c. E-9.1, r. 1, s. 22.
Constitutional
law — Charter of Rights — Freedom of religion — Schools — Mandatory ethics and
religious culture program — Private denominational school proposing alternative
program — Request for exemption denied by Minister — Whether Minister’s
insistence that proposed alternative program be entirely secular in its
approach is reasonable given the statutory
objectives of mandatory program and s. 2 (a) of the Canadian Charter of Rights
and Freedoms .
Human
rights — Freedom of religion — Schools — Mandatory ethics and religious culture
program — Private denominational school proposing alternative program — Request
for exemption denied by Minister — Whether Minister’s insistence that proposed
alternative program be entirely secular in its approach is reasonable given the
statutory objectives of mandatory program —
Whether Minister’s decision limits freedom of religion under s. 3 of the
Charter of human rights and freedoms, CQLR, c. C-12.
Loyola High School is a private,
English-speaking Catholic high school for boys. It has been administered by the
Jesuit Order since the school’s founding in the 1840s. Most of the students at
Loyola come from Catholic families.
Since September 2008, as part of the mandatory
core curriculum in schools across Quebec, the Minister of Education, Recreation
and Sports has required a Program on Ethics and Religious Culture (ERC), which
teaches about the beliefs and ethics of different world religions from a
neutral and objective perspective.
The
stated objectives of the ERC Program are the “recognition of others” and the
“pursuit of the common good”. They seek to inculcate in students openness to
human rights, diversity and respect for others. To fulfil these objectives, the ERC Program has three
components: world religions and religious culture, ethics, and dialogue. The
three components are intended to support and reinforce one another. The
orientation of the Program is strictly secular and cultural and requires
teachers to be objective and impartial. They are not to advance the truth of a
particular belief system or attempt to influence their students’ beliefs, but
to foster awareness of diverse values, beliefs and cultures. The Program provides a framework that teachers are required to use
to help students develop these competencies, but leaves teachers with
considerable flexibility in developing their own lessons.
The purpose of the religious culture
component is to help students understand the main elements of religion by
exploring the socio-cultural contexts in which different religions take root
and develop. The purpose of the ethics component is to encourage students to think
critically about their own ethical conduct and that of others, as well as about
the values and norms that different religious groups adopt to guide their
behaviour. The purpose of the dialogue component is to help students develop
the skills to interact respectfully with people of different beliefs.
Pursuant to s. 22 of the Regulation
respecting the application of the Act respecting private education, the
Minister can grant an exemption from the ERC Program if the proposed
alternative program is deemed to be “equivalent”. Loyola wrote to the Minister
to request an exemption from the Program, proposing an alternative course to be
taught from the perspective of Catholic beliefs and ethics. The Minister denied
the request based on the fact that Loyola’s whole proposed alternative program
was to be taught from a Catholic perspective. It was not, as a result, deemed
to be “equivalent” to the ERC Program.
Loyola
brought an application for
judicial review of the Minister’s decision. The Superior Court found that the
Minister’s refusal of an exemption infringed Loyola’s right to religious
freedom and accordingly granted the application, quashed the Minister’s
decision, and ordered an exemption. On appeal, the Quebec Court of Appeal concluded that the Minister’s decision was reasonable and did not
result in any breach of religious
freedom. Before this Court, Loyola modified its request to teach the whole
program from a Catholic perspective, and was now prepared to teach about the
doctrines and practices of other world religions neutrally. But, significantly,
it still wanted to teach about the ethics of other religions from a
Catholic perspective. The Minister’s position remained the same — no part of
the program could be taught from a Catholic perspective, including Catholic
doctrine and ethics.
Held:
The Minister’s decision
requiring that all aspects of Loyola’s proposed program be taught from a
neutral perspective, including the teaching of Catholicism, limited freedom of
religion more than was necessary given the statutory objectives. As a result,
it did not reflect a proportionate balancing and should be set aside. The
appeal is allowed and the matter remitted to the Minister for reconsideration.
Per
LeBel, Abella, Cromwell and Karakatsanis JJ.: This Court’s decision in Doré v. Barreau du Québec,
[2012] 1 S.C.R. 395, sets out the applicable framework for reviewing
discretionary administrative decisions that engage the protections of the Charter
— both its guarantees and the foundational values they reflect. The
discretionary decision-maker is required to proportionately balance the
relevant Charter protections to ensure that they are limited no more
than necessary given the applicable statutory objectives. The reasonableness of
the Minister’s decision in this case therefore depends on whether it reflected
a proportionate balance between the objectives of promoting tolerance and
respect for difference, and the religious freedom of the members of the Loyola
community.
Freedom
of religion means that no one can be forced to adhere to or refrain from a
particular set of religious beliefs. This includes both the individual and collective aspects of
religious belief. Religious freedom under the Charter must therefore
account for the socially embedded nature of religious belief, and the deep
linkages between this belief and its manifestation through communal
institutions and traditions.
The
context in this case is state regulation of religious schools. This raises the
question of how to balance robust protection for the values underlying
religious freedom with the values of a secular state. The state has a
legitimate interest in ensuring that students in all schools are capable, as
adults, of conducting themselves with openness and respect as they confront
cultural and religious differences. A vibrant, multicultural democracy depends
on the capacity of its citizens to engage in thoughtful and inclusive forms of
deliberation. But a secular
state does not — and cannot — interfere with the beliefs or practices of a
religious group unless they conflict with or harm overriding public interests.
Nor can a secular state support or prefer the practices of one group over
another. The pursuit of secular values means respecting the right to hold and
manifest different religious beliefs. A secular state respects religious
differences, it does not seek to extinguish them.
Loyola
is a private Catholic institution. The collective aspects of religious freedom
— in this case, the collective manifestation and transmission of Catholic
beliefs — are a crucial part of its claim. The Minister’s decision requires
Loyola to teach Catholicism, the very faith that animates its character, from a
neutral perspective. Although the state’s purpose is secular, this amounts to requiring a Catholic institution
to speak about its own religion in terms defined by the state rather than by its
own understanding. This demonstrably interferes with
the manner in which the members of an institution formed for the purpose of
transmitting Catholicism can teach and learn about the Catholic faith. It also
undermines the liberty of the members of the community who have chosen to give
effect to the collective dimension of their religious beliefs by participating
in a denominational school.
In the Quebec context, where private
denominational schools are legal, preventing a school like Loyola from teaching
and discussing Catholicism from its own perspective does little to further the
ERC Program’s objectives while at the same time seriously interfering with
religious freedom. The Minister’s decision suggests
that engagement with an individual’s own religion on his or her own terms can
be presumed to impair respect for others. This assumption led the Minister to a decision that does not,
overall, strike a proportionate balance between the Charter protections
and statutory objectives at stake in this case.
That
said, the Minister is not required to permit Loyola to teach about the ethics
of other religions from a Catholic perspective. The risk of such an approach would be that other religions would
necessarily be seen not as differently legitimate belief systems, but as worthy
of respect only to the extent that they aligned with the tenets of Catholicism. This contradicts the ERC Program’s goals
of ensuring respect for different religious beliefs. In a multicultural society, it is not a breach of
anyone’s freedom of religion to be required to learn (or teach) about the
doctrines and ethics of other world religions in a neutral and respectful way. In a religious high school, where students
are learning about the precepts of one particular faith throughout their
education, it is arguably even more important that they learn, in as objective
a way as possible, about other belief systems and the reasons underlying those
beliefs.
Teaching the ethical frameworks of other
religions in a neutral way may be a delicate exercise, but the fact that there
are difficulties in implementation does not mean the state should be asked to
throw up its hands and abandon its objectives by accepting a program that
frames the discussion of ethics primarily through the moral lens of a school’s
own religion.
It is the Minister’s decision as a whole that
must reflect a proportionate and therefore reasonable balancing of the Charter
protections and statutory objectives in issue. Preventing a school like Loyola from teaching
and discussing Catholicism, the core of its identity, in any part of the
program from its own perspective, does little to further the ERC Program’s
objectives while at the same time seriously interfering with the values
underlying religious freedom. The Minister’s decision is, as a result, unreasonable.
Per
McLachlin C.J. and Rothstein and Moldaver JJ.: Loyola, as a religious
organization, is entitled to the constitutional protection of freedom of
religion. The communal character of religion means that protecting the religious
freedom of individuals requires protecting the religious freedom of religious
organizations, including religious educational bodies such as Loyola.
The
first issue is whether Loyola’s freedom of religion was infringed by the
Minister’s decision. The second issue is whether the Minister’s decision — that
only a purely secular course of study may serve as an equivalent to the ERC
Program — limits Loyola’s freedom of religion more than reasonably necessary to
achieve the goals of the program. However one describes the precise analytic
approach taken, the essential question raised by this appeal is whether the
Minister’s decision limited Loyola’s right to religious freedom proportionately
— that is, no more than was reasonably necessary.
Loyola
proposed an alternative to the ERC Program that takes the following form: (1) Loyola
will teach Catholicism from the Catholic perspective, but will teach other
religions objectively and respectfully; (2) Loyola will emphasize the Catholic
point of view on ethical questions, but will ensure all ethical points are
presented on any given issue; and (3) Loyola will encourage students to think
critically and engage with their teachers and with each other in exploring the
topics covered in the program. Loyola’s proposal departs from the generic ERC
Program in two key respects. When teaching both Catholicism and ethics,
Loyola’s teachers would depart from the strict neutrality that the ERC Program
requires.
The freedom
of religion protected by s. 2 (a) of the Charter is not limited to
religious belief, worship and the practice of religious customs. Rather, it
extends to conduct more readily characterized as the propagation of, rather
than the practice of, religion. Where the claimant is an organization rather
than an individual, it must show that the claimed
belief or practice is consistent with both its purpose and operation. While an
organization itself cannot testify, the credibility of officials and
representatives who give testimony on the organization’s behalf will aid in
evaluating this consistency. It is proper to assess the claimed belief or
practice in light of objective facts such as the organization’s other
practices, policies and governing documents. The beliefs and practices of an
organization may also reasonably be expected to be less fluid than those of an
individual, therefore inquiry into past practices and consistency of position
would be more relevant than in the context of a claimant who is a natural
person.
This
is not a case where the assessment of consistency is difficult, or where there
is a reasonable concern that the expressed belief is made in bad faith or for
an ulterior purpose. Having found that Loyola’s belief in its religious
obligation to teach Catholicism and ethics from a Catholic perspective is
consistent with its organizational purpose and operation, it is evident that
the Minister’s denial of an exemption from the ERC Program — which has the
effect of requiring Loyola to teach its entire ethics and religion program from
a neutral, secular perspective — infringes Loyola’s freedom of religion in violation
of s. 2 (a) of the Charter .
The
government bears the burden of showing that the Minister’s insistence on a
purely secular program of study to qualify for an exemption limited Loyola’s
religious freedom no more than reasonably necessary to achieve the ERC
Program’s goals. There is nothing inherent in the ERC Program’s objectives
(recognition of others and pursuit of the common good) or competencies (world
religions, ethics, and dialogue) that requires a cultural and
non-denominational approach. As the legislative and regulatory scheme
demonstrates, the intention of the government was to allow religious schools to
teach the ERC Program without sacrificing their own religious perspectives.
This goal is entirely realistic. A program of purely denominational instruction
designed primarily to indoctrinate students to the correctness of certain
religious precepts would not achieve the objectives of the ERC Program;
however, a balanced curriculum, taught from a religious perspective but with
all viewpoints presented and respected, could serve as an equivalent to the ERC
Program. To the extent Loyola’s proposal meets these criteria, it should not
have been rejected out of hand.
There
is unquestionably a role for the Minister to examine proposed programs on a
case-by-case basis to ensure that they adequately further the objectives and
competencies of the ERC Program. In certain cases, the result may be that the
religious freedoms of private schools are subject to justifiable limitations.
Here, however, the Minister adopted a definition of equivalency that
essentially read this meaningful individualized approach out of the legislative
and regulatory scheme. By using as her starting point the premise that only a
secular approach to teaching the ERC Program can suffice as equivalent, the
protection contemplated by the exemption provision at issue was rendered
illusory.
The
legislative and regulatory scheme is designed to be flexible and to permit
private schools to deviate from the generic ERC Program, so long as its
objectives are met. The Minister’s definition of equivalency casts this
intended flexibility in the narrowest of terms, and limits deviation to a
degree beyond that which is necessary to ensure the objectives of the ERC
Program are met. This led to a substantial infringement on Loyola’s religious
freedom. In short, the Minister’s decision was not minimally impairing.
Therefore, it cannot be justified under s. 1 of the Charter as a
reasonable limit on Loyola’s s. 2 (a) right to religious freedom.
Determining
whether a proposed program is sufficiently equivalent to the generic ERC
Program is a fact-based exercise. In the context of the present case, Loyola’s
teachers must be permitted to describe and explain Catholic doctrine and
ethical beliefs from the Catholic perspective. Loyola’s teachers must describe
and explain the ethical beliefs and doctrines of other religions in an
objective and respectful way. Loyola’s teachers must maintain a respectful tone
of debate, but where the context of the classroom discussion requires it, they
may identify what Catholic beliefs are, why Catholics follow those beliefs, and
the ways in which other ethical or doctrinal propositions do not accord with
those beliefs.
This
Court is empowered by s. 24(1) of the Charter to craft an appropriate
remedy in light of all of the circumstances. It is neither necessary nor just
to send this matter back to the Minister for reconsideration, further delaying
the relief Loyola has sought for nearly seven years. Based on the application
judge’s findings of fact, and considering the record and the submissions of the
parties, the only constitutional response to Loyola’s application for an
exemption would be to grant it.
Cases Cited
By Abella J.
Applied:
Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; considered:
S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235; referred to: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Multani v.
Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Alberta v.
Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Congrégation
des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004
SCC 48, [2004] 2 S.C.R. 650; Chamberlain v. Surrey School District No. 36,
2002 SCC 86, [2002] 4 S.C.R. 710; Catalyst Paper Corp. v. North Cowichan
(District), 2012 SCC 2, [2012] 1 S.C.R. 5; R. v.
Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199; Eur. Court H. R., Kokkinakis v. Greece,
judgment of 25 May 1993, Series A No. 260-A; Metropolitan Church of
Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII; Bruker v. Marcovitz,
2007 SCC 54, [2007] 3 S.C.R. 607; Adler
v. Ontario, [1996] 3 S.C.R. 609; Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art
Ltd., [1986] 2 S.C.R. 713; Reference
re Same-Sex Marriage, 2004 SCC 79,
[2004] 3 S.C.R. 698.
By McLachlin C.J. and Moldaver J.
Applied: Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Multani v.
Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; referred to: Doré v. Barreau
du Québec, 2012 SCC 12,
[2012] 1 S.C.R. 395; Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567; Edmonton Journal v. Alberta (Attorney
General), [1989] 2 S.C.R. 1326; Hunter v. Southam Inc., [1984] 2
S.C.R. 145; R. v. CIP Inc., [1992] 1 S.C.R. 843; Health Services and Support — Facilities Subsector Bargaining Assn.
v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R.
391; Sindicatul “Păstorul Cel Bun” v. Romania (2014), 58 E.H.R.R.
10; Metropolitan Church of
Bessarabia v. Moldova, No.
45701/99, ECHR 2001-XII; Hosanna-Tabor Evangelical
Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012); National Labor Relations Board v. Catholic Bishop of
Chicago, 440 U.S. 490
(1979); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v.
Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; S.L.
v. Commission scolaire des Chênes, 2012 SCC 7,
[2012] 1 S.C.R. 235.
Statutes and Regulations Cited
Act respecting private education, CQLR,
c. E-9.1, ss. 10, 25, 32, 111.
Act respecting the Ministère de l’Éducation, du Loisir et du Sport, CQLR, c. M-15, preamble, s. 2 .
Basic school regulation for preschool, elementary and secondary
education, CQLR, c. I-13.3, r. 8, ss. 23, 23.1.
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (a), 24(1) .
Charter of human rights and freedoms,
CQLR, c. C-12, ss. 3, 41.
Companies Act, CQLR, c. C-38, Part III.
Education Act, CQLR, c. I-13.3, ss. 447,
459, 461.
Interpretation Act, CQLR, c. I-16, s. 61(16).
Regulation respecting the application of the Act respecting private
education, CQLR, c. E-9.1, r. 1, s. 22.
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 221 [the European
Convention on Human Rights], art. 9.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, arts. 18(1), (4).
Universal Declaration of Human Rights,
G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 18.
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APPEAL
from a judgment of the Quebec Court of Appeal (Hilton, Wagner and Fournier JJ.A.),
2012 QCCA 2139, [2012] R.J.Q. 2112, 46 Admin. L.R. (5th) 79, [2012] AZ-50918665,
[2012] Q.J. No. 15094 (QL), 2012 CarswellQue 12912 (WL Can.), setting aside a
decision of Dugré J., 2010 QCCS 2631, [2010] R.J.Q. 1417, [2010] AZ-50647607, [2010]
Q.J. No. 5789 (QL), 2010 CarswellQue 15823 (WL Can.). Appeal allowed.
Mark
Phillips and Jacques S. Darche, for the
appellants.
Benoit
Boucher, Dominique Legault, Amélie
Pelletier-Desrosiers and Caroline Renaud, for the respondent.
Barry
W. Bussey and Derek Ross, for the intervener
the Canadian Council of Christian Charities.
Albertos
Polizogopoulos and Don Hutchinson, for the
intervener the Evangelical Fellowship of Canada.
Robert
E. Reynolds and Ruth Ross, for the intervener
the Christian Legal Fellowship.
Palbinder
K. Shergill, Q.C., and Balpreet Singh
Boparai, for the intervener the World Sikh Organization of Canada.
Ian
C. Moes and André Schutten, for the
intervener the Association of Christian Educators and Schools Canada.
Jean-Philippe
Groleau, Guy Du Pont and Léon H. Moubayed,
for the intervener the Canadian Civil Liberties Association.
Ranjan
K. Agarwal and Jack R. Maslen, for the
interveners the Catholic Civil Rights League, Association des parents catholiques
du Québec, the Faith and Freedom Alliance and Association de la communauté
copte orthodoxe du grand Montréal.
Blake
Bromley, for the intervener the Faith, Fealty and
Creed Society.
Jean-Yves
Côté and Paul D. Faris, for the intervener the
Home School Legal Defence Association of Canada.
Gerald
D. Chipeur, Q.C., and Grace Mackintosh,
for the interveners the Seventh-day Adventist Church in Canada and the Seventh-day
Adventist Church — Quebec Conference.
Milton
James Fernandes and Sergio G. Famularo, for
the interveners Corporation archiépiscopale catholique romaine de Montréal and
Archevêque catholique romain de Montréal.
The judgment of LeBel,
Abella, Cromwell and Karakatsanis JJ. was delivered by
[1]
Abella J. — Since September
2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education, Recreation and Sports has required a Program on Ethics and
Religious Culture (ERC), which teaches about the beliefs and ethics of
different world religions from a neutral and objective perspective. Like all
courses in the mandatory curriculum, the Minister may grant private schools an
exemption from the ERC Program if they offer an alternative program that the
Minister deems to be equivalent.
[2]
This appeal results
from a judicial review of the Minister’s decision to deny an exemption sought
by a private, Catholic school. The Minister based her decision on the fact
that the school’s whole proposed program was to be taught from a Catholic
perspective. It was not, as a result, “equivalent” to the ERC Program. The
school submits that this is an interference with its religious freedom. The
Minister submits that it is a necessary strategy to ensure that students are
knowledgeable about and respectful of the differences of others. In a sense,
they are both right . . .
[3]
This Court’s decision
in Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, sets out the
applicable framework for assessing whether the Minister has exercised her
statutory discretion in accordance with the relevant Canadian Charter
of Rights and Freedoms protections. Doré succeeded a line of
conflicting jurisprudence which veered between cases like Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, that applied
s. 1 (and a traditional Oakes analysis) to discretionary administrative
decisions, and those, like Lake v. Canada (Minister
of Justice), [2008]
1 S.C.R. 761, which applied an administrative law approach. The result in Doré
was to eschew a literal s. 1 approach in favour of a robust
proportionality analysis consistent with administrative law principles.
[4]
Under Doré,
where a discretionary administrative decision engages the protections
enumerated in the Charter — both the Charter’s guarantees and the foundational values they reflect
— the discretionary
decision-maker is required to proportionately balance the Charter
protections to ensure that they are limited no more than is necessary given the
applicable statutory objectives that she or he is obliged to pursue.
[5]
In this case, the
Minister’s decision reflected the fundamental assumption that any program
taught from a religious perspective could not be an alternative to the ERC
Program and that the religious school could not teach even its own religion
from its own perspective.
[6]
For the reasons that
follow, in my view prescribing to Loyola how it is to explain Catholicism to
its students seriously interferes with freedom of religion, while representing
no significant benefit to the ERC Program’s objectives. In a context like
Quebec’s, where private denominational schools are legal, this represents a
disproportionate, and therefore unreasonable interference with the values
underlying freedom of religion of those individuals who seek to offer and who
wish to receive a Catholic education at Loyola. On the other hand, I see no
significant impairment of freedom of religion in requiring Loyola to offer a
course that explains the beliefs, ethics and practices of other religions in as
objective and neutral a way as possible, rather than from the Catholic
perspective.
Background
[7]
Loyola High School is a
private, English-speaking Catholic high school for boys. It is highly
respected, and has been administered by the Jesuit Order since the school’s
founding in the 1840s. Its mission, teaching, and characteristics are Jesuit.
Most of the students at Loyola come from Catholic families.
[8]
Until relatively recently, public education in Quebec was entirely
confessional in nature and public schools
were organized along denominational lines, under the complete control of the
Catholic and Protestant Committees of the Council of Public Instruction, who “ran their respective schools with little or
no government interference”: Spencer Boudreau, “From Confessional to Cultural:
Religious Education in the Schools of Québec” (2011), 38 Religion & Education
212, at p. 213.
[9]
With the Quiet
Revolution in the 1960s, the state took charge of educational institutions
formerly controlled by religious communities. By 2000,
public schools were fully secularized and denominational schools no longer had
official status in the public system. They were, however, permitted to operate
as private schools: see S.L.
v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235, at para. 12.
[10]
The Ethics and
Religious Culture (ERC) Program, which is the most recent step in the process
of secularization of the school system, replaced all the remaining Catholic and
Protestant religious programs with a secularized study of religion and ethics.
It became mandatory for all schools,
public and private, at the start of the 2008-2009 school year. At the
secondary level, the program is required to be taught in four of the
five years of school: Basic school regulation for
preschool, elementary and secondary education, CQLR,
c. I-13.3, r. 8, ss. 23 and 23.1.
[11]
The ERC Program has two key stated objectives:
the “recognition of others” and the “pursuit of the common good”. The first
objective is based on the principle that all people possess equal value and
dignity. The second seeks to foster shared values of human rights and
democracy. By imposing this program in its schools, Quebec seeks to inculcate
in all students openness to diversity and respect for others.
[12]
In order to fulfil
these objectives, the ERC Program has three components which seek to develop
three competencies among students: the ability to understand “religious
culture”, which includes the study of world religions; the ability to reflect
on ethical questions; and the ability to engage in dialogue. The three
competencies are intended to support and reinforce one another.
[13]
The purpose of the
religious culture component is to help students understand the main elements of
religion by exploring the socio-cultural contexts in which different religions
take root and develop. The program takes a cultural and
phenomenological rather than a doctrinal approach to the study of religions.
Because of their role in Quebec’s history, it accords a prominent role to
Catholicism and Protestantism, but teachers are also required to discuss
Judaism, Islam, Hinduism, Buddhism, and Aboriginal belief systems.
[14]
The purpose of the
ethics component is to encourage students to critically reflect on their own
ethical conduct and that of others, as well as on the values and norms that
different religious and social groups adopt to guide their behaviour.
[15]
The purpose of the
dialogue component, which is integrated with the ethics and religious culture
components, is to help students develop the skills to interact respectfully
with people of different beliefs in a diverse society, and to understand the
impact of their behaviour on the broader community.
[16]
The ERC Program provides a framework that
teachers must utilize to help students develop these competencies, but leaves
teachers with considerable flexibility in developing their own lessons and
structuring their course to convey this content.
[17]
The major world religions are taught through
themes. Students explore the elements of religious traditions, including
different representations of divinity, creation stories, and religious rites,
rules and duties. They also discuss Quebec’s religious heritage. They then
learn about the founding and development of different world religions, and
examine the ways that different traditions and philosophical texts have
approached questions about divinity, the meaning of life and death, and the
human condition generally. And they draw on literature to explore different
kinds of religious experiences, methodologies for transmitting religion, and
ways religious experiences shape people and communities.
[18]
Students develop
competency in ethics by exploring themes such as
freedom, autonomy, and tolerance, among others. They develop competency in dialogue by learning about different forms of dialogue; strategies for developing, explaining
or challenging a point of view; and processes and patterns of thought that can
undermine dialogue, such as stereotyping and prejudice.
[19]
The orientation of the
ERC Program is strictly secular and cultural; it requires teachers to take a
“professional stance” of objectivity and impartiality. That
means that they are not to advance the truth of a particular belief system or
attempt to influence their students’ beliefs. Instead, their role is to foster
awareness of diverse values, beliefs and cultures. Teachers in the program are
therefore expected to act as mediators to help their students develop the
critical capacity to understand, articulate and question different points of
view.
[20]
The ERC program has
already been scrutinized — and found to be constitutional — by this Court in
the context of the public school system. In S.L., a group of parents
claimed that the program would confuse their children and interfere with their
religious training because it exposed them to information about various world
religions from a secular perspective. They argued that this amounted to a
violation of s. 2 (a) of the Charter .
[21]
The Court rejected
their claim and affirmed the
constitutionality of the ERC Program as a mandatory component of the curriculum
in public schools. In her
reasons, Justice Deschamps observed that
[p]arents are free to pass their
personal beliefs on to their children if they so wish. However, the early
exposure of children to realities that differ from those in their immediate
family environment is a fact of life in society. The suggestion that exposing
children to a variety of religious facts in itself infringes their religious
freedom or that of their parents amounts to a rejection of the multicultural
reality of Canadian society and ignores the Quebec government’s obligations
with regard to public education. Although such exposure can be a source of
friction, it does not in itself constitute an infringement of s. 2 (a) of
the Canadian Charter and of s. 3 of the Quebec Charter. [S.L.,
at para. 40]
[22]
The same Ethics and
Religious Culture Program is now before us in the context of a private
denominational school. Like their counterparts in the public school system,
the core curriculum of private denominational schools is regulated by the
province and is compulsory: Education Act, CQLR, c. I-13.3, ss. 447 and 459; Basic school regulation for preschool, elementary
and secondary education, ss. 23 and 23.1; An Act respecting private
education, CQLR, c. E-9.1, ss. 25 and 32.
[23]
A private school is entitled to provide an
alternative but “equivalent” program if the Minister approves its content.
Section 22 of the Regulation respecting the application of the Act
respecting private education, CQLR, c. E-9.1, r. 1, sets out the Minister’s
authority to grant an exemption where the school in question proposes to teach
an alternative program which the Minister decides is sufficiently similar to
the compulsory curriculum. It states:
22.
Every institution shall be exempt from the [compulsory curriculum] provided the
institution dispenses programs of studies which the Minister of Education,
Recreation and Sports judges equivalent.
[24]
On March 30, 2008,
approximately five months before the ERC Program became mandatory across the
Quebec school system, Loyola’s Principal and Director wrote to the Minister to
request an exemption from the program for the upcoming school year. They
claimed that the program was incompatible with Loyola’s Catholic mission and
convictions and proposed an alternative program that placed greater emphasis on
Catholic beliefs and ethics.
[25]
In response to the
Minister’s request for additional information, Loyola sent the Minister a
document setting out a general description of its proposed alternative program.
The document presents the religious and ethical teachings of the Catholic
Church as a central component of the proposed alternative program and as the
basis upon which students should learn about other religions. Although it
provides an opportunity to discuss major world religions and different ethical
positions, the normative core of Loyola’s proposed curriculum is the doctrine
and belief system of the Catholic Church. Catholic doctrine and ethics would be
emphasized early and taught in great depth, and would frame the discussion of
other religions and ethical approaches. The third year of the program, for
example — a year in which Loyola’s proposed program would focus primarily on
teaching its students about ethics — is described as a course on “Catholic
Moral Teaching” designed to “offer a Catholic vision
for answering the question ‘What kind of person am I becoming, and what kind of
person do I want to become?’ It centers on Jesus as the model of full
humanness”. In the fourth year of the program, which focuses on the world
religions component,
[t]he course presents a
concise history of the Catholic Church, covering the significant events and
doctrines that have shaped the course of Catholic thought and action over the
past millennia. Beginning with the Apostolic Age, it follows the rise of
Christendom through the High Middle Ages to the Reformation and into the
Twentieth Century. Topics include the early fathers of the Church, scholars,
heresies, councils, popes and saints and concludes with an exploration of the
current challenges that we face in the post-modern world.
. . .
As the course progress[es] through history, a variety of Religions are discussed
. . . [i]n particular, the interaction between the Catholic Church
and the various other religions is explored.
Loyola’s
proposed course description did not address the dialogue competency that is
required as part of the ERC Program.
[26]
In a letter dated
August 7, 2008, the Minister denied Loyola’s request for an exemption from
teaching the ERC curriculum, seeing Loyola’s proposed approach as essentially a
request for a departure from teaching the ERC subject altogether, rather than
for an exemption based on a proposed equivalent course.
[27]
Loyola sent a follow-up
request to the Minister on August 25, 2008, attempting to demonstrate how its
proposed alternative program met the objectives of the ERC Program. In its
view, the religious nature of the school prevented it from teaching Catholic
beliefs or other religions from a “neutral” or detached perspective. Although
its program would be taught from a Catholic perspective, it would offer its
students a deeper and more thorough understanding of world religions by going
beyond history and external customs to engage seriously with their fundamental
beliefs. It also affirmed its commitment to teaching its students to [translation] “think critically, to
obtain information, to be aware of the principal ethical issues and to examine
popular beliefs and practices”, but from a Catholic perspective.
[28]
This second request was
also denied by the Minister. In a letter dated November 13, 2008, a department
official writing on the Minister’s behalf expressed concern that Loyola’s
proposed program was faith-based, rather than cultural. The letter also
mentioned what were seen as defects in the development of competency in
dialogue and in the role of the teacher. The letter set out the following six
bases for the Minister’s decision to deny Loyola’s request for an exemption:
[translation]
•
The
two main goals of the Ethics and Religious Culture program are recognition of
others and pursuit of the common good. The approach to and the conception of
the common good developed in the Ethics and Religious Culture program [and
those] proposed by Loyola High School are very different. The approach
advocated in the Ethics and Religious Culture program is cultural, not
faith-based. According to the summary of the program proposed by Loyola High
School and submitted to the department for evaluation, the program is based on
the Catholic faith and its main goal is the transmission of Catholic beliefs
and convictions. It encompasses a conception of others, but once again from a
Christian Catholic perspective.
•
Again
according to the summary of the program submitted to the department for
evaluation, it appears that, contrary to the Ethics and Religious Culture
program, the Loyola High School program does not lead the student to reflect on
the common good, or on ethical issues, but rather to adopt the Jesuit
perspective of Christian service.
•
The ethics component of the
Ethics and Religious Culture program does not offer the students moral
education. It takes into consideration elements of religious culture, whereas,
according to the information transmitted to the department, the ethics aspect
of the program proposed by Loyola High School focuses on the teaching of moral
reference points laid down by the Catholic Church.
•
According to the summary of the program
submitted to the department for evaluation, the program proposed by Loyola High
School does not provide for the development of competence in the practice of
dialogue within the meaning of the Ethics and Religious Culture program.
•
The training in religious culture
of the Ethics and Religious Culture program is aimed at an enlightened
comprehension of the many expressions of the religious experience present in
Québec culture and in the world. Each religious tradition is observed
individually without comparison or reference to another tradition. According to
the summary of the program proposed by Loyola High School and transmitted to
the department for evaluation, the program does not meet the requirements for
the Ethics and Religious Culture program in terms of religious culture, as
religions are studied in connection with the Catholic religion.
•
Again according to the summary of the program
submitted to the department for evaluation, the program proposed by Loyola High
School is distinguished from the Ethics and Religious Culture program in terms
of the teacher’s role. In the Ethics and Religious Culture program, the
teacher’s foremost responsibility is to assist and guide the students in their
reflections, whereas according to the information provided the department, the
teacher of the program proposed by Loyola High School seems to have to teach
the foundations of the religion and universe of Jesuit Catholic beliefs.
[29]
Loyola brought an
application for judicial review of the Minister’s decision. In its view, the
“normative pluralism” that underpinned the entire ERC Program was a violation
of freedom of religion because it was incompatible with Loyola’s character as a
Catholic institution. After hearing additional testimony from Loyola about its
proposed alternative program, the application judge concluded that the
Minister’s decision was incorrect, and constituted an unjustified violation of
Loyola’s right to religious freedom.
[30]
On appeal, the Quebec
Court of Appeal unanimously overturned the decision. Applying this Court’s
decision in Doré, the Court of Appeal held that a reasonableness
standard should be applied in assessing how the Minister balanced the Charter
rights at stake. It concluded that the ERC Program did not interfere with
religious freedom in any substantial manner, and that the Minister had
therefore exercised her discretion in a reasonable manner.
[31]
Before this Court,
Loyola took a different position than in the prior proceedings. Loyola had
previously asserted that the entire orientation of the ERC Program
represented an impairment of religious freedom on the basis that discussing any
religion through a neutral lens would be incompatible with Catholic beliefs.
Its revised position before us was that it did not object to teaching other world
religions objectively in the first component which focuses on “understanding
religious culture”. But it still wanted to be able to teach the ethics
of other religious traditions from the perspective of the Catholic religion
rather than in an objective and neutral way. Moreover, it continued to assert
the right to teach Catholic doctrine and ethics from a Catholic perspective.
Loyola took no position on the perspective from which it would seek to teach
the dialogue component, which would be integrated with the other two components
of its proposed alternative program. The position of
the Minister before this Court, however, remained the same as it had been in
the prior proceedings, namely, that in no aspect of the ERC Program would
Loyola be permitted to teach from a Catholic perspective. It follows that Loyola’s change of
position has little impact on the analysis. The question instead is
whether the Minister’s unchanged position, as reflected in her decision
concerning the equivalency of Loyola’s proposed program, interferes with the
relevant Charter protections no more than is necessary given the
statutory objectives she was required to pursue.
Analysis
[32]
Loyola does not
challenge the Minister’s statutory authority to impose curricular requirements,
but rather her discretionary decision to deny Loyola an exemption from the ERC
Program. The reasonableness
of the Minister’s decision depends on whether it reflected a proportionate
balance between the statutory mandate to grant exemptions only when a proposed
alternative program is “equivalent” to the prescribed curriculum, based on the
ERC Program’s goals of promoting tolerance and respect for difference, and the
religious freedom of the members of the Loyola community who seek to offer and
wish to receive a Catholic education.
[33]
Loyola, a non-profit
corporation constituted under Part III of the Quebec Companies Act, CQLR,
c. C-38, also argued that its own religious freedom had been violated by the
decision. I recognize that individuals may sometimes require a legal entity in
order to give effect to the constitutionally protected communal aspects of
their religious beliefs and practice, such as the transmission of their faith: Alberta
v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, at
para. 181; Congrégation des
témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004]
2 S.C.R. 650. I do not
believe it is necessary, however, to decide whether corporations enjoy
religious freedom in their own right under s. 2 (a) of the Charter
or s. 3 of the Charter of human rights and freedoms, CQLR, c. C-12 (the Quebec
Charter), in order to dispose of this appeal.
[34]
In this case Loyola, as an entity lawfully created to give effect
to religious belief and practice, was denied a statutory exemption from an
otherwise mandatory regulatory scheme. As the subject of the administrative
decision, Loyola is entitled to apply for judicial review and to argue that the
Minister failed to respect the values underlying the grant of her discretion as
part of its challenge of the merits of the decision. In my view, as a result,
it is not necessary to decide whether Loyola itself, as a corporation, enjoys
the benefit of s. 2 (a) rights, since the Minister is bound in any event
to exercise her discretion in a way that respects the values underlying the
grant of her decision-making authority, including the Charter-protected
religious freedom of the members of the Loyola community who seek to offer and
wish to receive a Catholic education: Chamberlain
v. Surrey School District No. 36,
[2002] 4 S.C.R. 710, at para. 71.
[35]
This case, as the Court
of Appeal noted and as the parties before this Court accepted, squarely engages
the framework set out in Doré, which applies to discretionary administrative decisions that
engage the Charter. Doré requires administrative decision-makers to proportionately balance the Charter
protections —values and rights — at stake in their decisions with the
relevant statutory mandate: Doré, at
para. 55.
[36]
As Aharon Barak
explained, the purpose of a constitutional right is the realization of its
constitutional values: Human Dignity: The
Constitutional Value and the Constitutional Right (2015), at p. 144. In the
Doré analysis, Charter values — those values that underpin each right and give it meaning — help determine the extent of any given
infringement in the particular
administrative context and, correlatively, when
limitations on that right are proportionate in light of the applicable
statutory objectives: Hutterian Brethren, at para. 88; Lorne Sossin
and Mark Friedman, “Charter Values and Administrative Justice” (2014), 67 S.C.L.R.
(2d) 391, at pp. 403-4.
[37]
On judicial review, the task of the reviewing court applying the Doré framework
is to assess whether the decision is reasonable because it reflects a
proportionate balance between
the Charter protections at stake and the relevant statutory mandate: Doré, at para. 57. Reasonableness review is a contextual inquiry: Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5, at para. 18. In the context of decisions that implicate the Charter,
to be defensible, a decision must accord with the fundamental values
protected by the Charter.
[38]
The Charter enumerates a series of guarantees that can
only be limited if the government can justify those limitations as
proportionate. As a result, in order to ensure that decisions accord with the
fundamental values of the Charter in contexts where Charter rights
are engaged, reasonableness requires proportionality: Doré, at para. 57. As Aharon Barak noted,
“Reasonableness in [a strong] sense strikes a proper balance among the relevant
considerations, and it does not differ substantively from proportionality”: “Proportionality
(2)”, in The Oxford Handbook of Comparative Constitutional Law (2012),
Michel Rosenfeld and András Sajó, eds., 738, at p. 743.
[39]
The preliminary issue is whether the decision
engages the Charter by limiting its protections. If such a limitation
has occurred, then “the question becomes whether, in assessing the impact of
the relevant Charter protection and given the nature of the decision and
the statutory and factual contexts, the decision reflects a proportionate
balancing of the Charter protections at play”: Doré, at
para. 57. A proportionate balancing is one that gives effect, as fully as
possible to the Charter protections at stake given the particular
statutory mandate. Such a balancing will be found to be reasonable on judicial
review: Doré, at paras. 43-45.
[40]
A Doré proportionality analysis finds
analytical harmony with the final stages of the Oakes framework used to
assess the reasonableness of a limit on a Charter right under s. 1 :
minimal impairment and balancing. Both R. v. Oakes, [1986] 1
S.C.R. 103, and Doré require that Charter protections are
affected as little as reasonably possible in light of the state’s particular
objectives: see RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, at para. 160. As such, Doré’s proportionality
analysis is a robust one and “works the same justificatory muscles” as the
Oakes test: Doré, at para. 5.
[41]
The Doré analysis is also a highly
contextual exercise. As under the minimal impairment stage of the Oakes
analysis, under Doré there may be more than one proportionate outcome
that protects Charter values as fully as possible in light of the
applicable statutory objectives and mandate: RJR-MacDonald, at
para. 160.
[42]
Doré’s approach to reviewing administrative decisions that
implicate the Charter, including those of adjudicative tribunals, responds
to the diverse set of statutory and procedural contexts in which administrative
decision-makers operate, and respects the expertise that these decision-makers
typically bring to the process of balancing the values and objectives at stake
on the particular facts in their statutory decisions: para. 47; see also David Mullan, “Administrative Tribunals and Judicial
Review of Charter Issues After Multani” (2006), 21 N.J.C.L. 127, at p. 149; and Stéphane Bernatchez, “Les rapports entre le droit
administratif et les droits et libertés: la révision judiciaire
ou le contrôle constitutionnel?” (2010),
55 McGill L.J. 641. As Lorne Sossin and Mark Friedman
have observed in their cogent article:
While the Charter jurisprudence can
shed light on the scope of Charter values, it remains for each tribunal to
determine . . . how to balance those values against its policy
mandate. For example, while personal autonomy may be a broadly recognized
Charter value, it will necessarily mean something different in the context of a
privacy commission than in the context of a parole board. [p. 422]
[43]
The context before us — state regulation of
religious schools — poses the question of how to balance robust protection for
the values underlying religious freedom with the values of a secular state.
Part of secularism, however, is respect for religious differences. A secular state does not — and cannot —
interfere with the beliefs or practices of a religious group unless they conflict
with or harm overriding public interests. Nor can a secular state support or
prefer the practices of one group over those of another: Richard Moon, “Freedom
of Religion Under the Charter of Rights : The Limits of State Neutrality”
(2012), 45 U.B.C. L. Rev. 497, at pp. 498-99. The pursuit of secular
values means respecting the right to hold and manifest different religious
beliefs. A secular state respects religious differences, it does not seek to
extinguish them.
[44]
Through this form of neutrality, the state
affirms and recognizes the religious freedom of individuals and their
communities. As Prof. Moon noted:
Underlying the [state] neutrality
requirement, and the insulation of religious beliefs and practices from
political decision making, is a conception of religious belief or commitment as
deeply rooted, as an element of the individual’s identity, rather than simply a
choice or judgment she or he has made. Religious belief lies at the core of
the individual’s worldview. It orients the individual in the world, shapes his
or her perception of the social and natural orders, and provides a moral
framework for his or her actions. Moreover, religious belief ties the
individual to a community of believers and is often the central or defining
association in her or his life. The individual believer participates in a
shared system of practices and values that may, in some cases, be described as
“a way of life”. If religion is an aspect of the individual’s identity, then
when the state treats his or her religious practices or beliefs as less
important or less true than the practices of others, or when it marginalizes
her or his religious community in some way, it is not simply rejecting the
individual’s views and values, it is denying her or his equal worth. [Footnote
omitted; p. 507.]
[45]
Because it allows
communities with different values and practices to peacefully co-exist, a
secular state also supports pluralism. The European Court of Human Rights
recognized the relationship between religious freedom, secularism and pluralism
in Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A, a
case about a Jehovah’s Witness who had been repeatedly arrested for violating
Greece’s ban on proselytism. Concluding that the claimant’s Article 9 rights
to religious freedom had been violated, the court wrote:
As enshrined in Article 9, freedom
of thought, conscience and religion is one of the foundations of a “democratic
society” within the meaning of the Convention. It is, in its religious
dimension, one of the most vital elements that go to make up the identity of
believers and their conception of life, but it is also a precious asset for
atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable
from a democratic society, which has been dearly won over the centuries,
depends on it. [p. 17]
See also Metropolitan
Church of Bessarabia v. Moldova, No. 45701/99,
ECHR 2001-XII.
[46]
This does not mean that
religious differences trump core national values. On the contrary, as this
Court observed in Bruker v.
Marcovitz, [2007] 3 S.C.R.
607:
Not all differences are compatible with
Canada’s fundamental values and, accordingly, not all barriers to their
expression are arbitrary. Determining when the assertion of a right based on
difference must yield to a more pressing public interest is a complex, nuanced,
fact-specific exercise that defies bright-line application. It is, at the same
time, a delicate necessity for protecting the evolutionary integrity of both
multiculturalism and public confidence in its importance. [para. 2]
Or, as the
Bouchard-Taylor report observed:
A democratic, liberal State
cannot be indifferent to certain core values, especially basic human rights,
the equality of all citizens before the law, and popular sovereignty. These
are the constituent values of our political system and they provide its
foundation.
(Gérard
Bouchard and Charles Taylor, Commission de consultation sur les pratiques
d’accommodement reliées aux différences culturelles, Building the Future: A
Time for Reconciliation (2008), at p. 134)
[47]
These shared values —
equality, human rights and democracy — are values the state always has a
legitimate interest in promoting and protecting. They enhance the conditions
for integration and points of civic solidarity by helping connect us despite
our differences: Jürgen Habermas, “Religion in the Public Sphere” (2006), 14 Eur.
J. of Philos. 1, at p. 5. This is what makes pluralism work. As McLachlin
J. noted in Adler v. Ontario, [1996] 3
S.C.R. 609 (dissenting in
part), “[a] multicultural multireligious society can only work . . .
if people of all groups understand and tolerate each other”: para. 212.
Religious freedom must therefore be understood in the context of a secular,
multicultural and democratic society with a strong interest in protecting dignity
and diversity, promoting equality, and ensuring the vitality of a common belief
in human rights.
[48]
The state, therefore, has a legitimate interest
in ensuring that students in all schools are capable, as adults, of
conducting themselves with openness and respect as they confront cultural and
religious differences. A pluralist, multicultural democracy depends on the
capacity of its citizens “to engage in thoughtful and inclusive forms of
deliberation amidst, and enriched by,” different religious worldviews and
practices: Benjamin L. Berger, “Religious Diversity, Education, and the
‘Crisis’ in State Neutrality” (2014), 29 C.J.L.S. 103, at p. 115.
[49]
With this context in mind, we turn to assessing
the Minister’s decision in order to determine whether it proportionately
balanced religious freedom with the statutory objectives of the ERC Program.
[50]
I begin with an analysis of the statutory objectives at stake. Under s. 22 of the Regulation respecting the application of the
Act respecting private education, the Minister is required to grant
exemptions from the mandatory program when a school offers an “equivalent”
program. The starting point for the analysis of the statutory objectives is
interpreting the meaning of “equivalent”, taking into account the words of the
provision in this regulatory context, the scheme of the Act, the object of the
Act, and the intention of Parliament: Elmer A. Driedger, The Construction of
Statutes (1974), at p. 67; Rizzo & Rizzo Shoes Ltd. (Re), [1998]
1 S.C.R. 27, at para. 21.
[51]
This regulatory context concerns the minimum
educational attainments required of students in private and public schools
across Quebec. Quebec seeks to ensure that students who graduate with a
provincially approved secondary school diploma demonstrate the knowledge and
competencies they need to be productive members of society, and that schools
granting secondary school diplomas facilitate the realization of these skills.
In particular, the Minister has a statutory responsibility to adopt measures
that will contribute to individuals’ education and development, and to ensure
that educational institutions offer services of sufficient quality: An Act
respecting the Ministère de l’Éducation, du Loisir et du Sport, CQLR, c.
M-15, s. 2 .
[52]
To this end, under the Basic school
regulation for preschool, elementary and secondary education, Quebec
prescribes the compulsory subjects that must be taught each year and sets out
minimum requirements for the instructional hours to be accorded to each
subject: ss. 23 and 23.1. The Minister also has the power to set out core
course objectives and content, establish curricula to teach these core
subjects, as well as allow for optional content that can be customized
according to the needs of students: Education Act, s. 461. The mandatory
curricula must be taught in private as well as public schools: An Act
respecting private education, ss. 25 and 32. Finally, the regulatory
scheme also requires all private educational institutions to hold a permit to
operate, which enables the Minister to ensure that all private schools are
complying with the general regulatory framework it has set out: An Act
respecting private education, s. 10.
[53]
The power to grant exemptions from the mandatory
curriculum in cases where a school offers an “equivalent” program is part of
the Minister’s broader regulatory role of ensuring that basic educational
standards are met by schools and students alike. As a result, in order to be
consistent with the scheme as a whole, the Minister’s interpretation of which
programs are “equivalent” should take into account the objectives each course
seeks to meet and the competencies it seeks to inculcate in students.
[54]
At the same time, however, there would be little
point in offering an exemption if, in order to receive it, the proposed
alternative program had to be identical to the mandatory program in every way.
The exemption exists in a regulatory scheme that anticipates and sanctions the
existence of private denominational schools. And the preamble to An
Act respecting the Ministère de l’Éducation, du Loisir et du Sport, which
sets out the Minister’s powers, recognizes that parents have the right to
choose establishments that, according to their own convictions, best respect
the rights of their children. In order to respect values of religious freedom
in this context, as well as to cohere with the larger regulatory scheme, a
reasonable interpretation of the process for granting exemptions from the
mandatory curriculum would leave at least some room for the religious character
of those schools. The regulation providing for such exemptions would otherwise
operate to prevent what the Act respecting private education itself
allows — a private school being denominational.
[55]
Although it prescribes some course content, the
documentation describing the ERC Program does not set out detailed lesson plans
that teachers are required to cover. The program is instead structured to be
flexible and thematic, providing only a general framework to guide students in
developing competencies in ethics, dialogue and religious culture, in service
of the two key objectives of the program: the recognition of others and the
pursuit of the common good.
[56]
Given the highly flexible nature of the ERC
Program and its heavy emphasis on these two objectives, as well as the
context of the regulatory scheme as a whole, it is unreasonable to interpret
equivalence as requiring a strict adherence to specific course content, rather
than in terms of the ERC’s program objectives generally. Using the program’s
objectives as the marker for equivalence leaves the necessary flexibility for
the possibility of acceptable differences between an alternative program and
the ERC Program, including differences that can accommodate religious freedom.
As long as the alternative program substantially realizes the objectives of the
ERC Program, it should be considered equivalent. The Minister’s task was
therefore to arrive at a decision that proportionately balanced the realization
of the ERC Program’s objectives of promoting respect for others and openness to
diversity, with respect for Charter-protected religious freedom in this
context.
[57]
The information that was before
the Minister when she made her decision about Loyola’s proposed alternative
program consisted of two letters requesting the exemption and a three-page
proposed curriculum document. Based on these documents, the Minister
identified a number of key differences between the two programs. The crucial
difference, however, was the religious nature of Loyola’s program. Loyola proposed
an alternative program that would focus on Catholic precepts and ethics, and
discuss other belief systems from a Catholic perspective. Its main goal, as
the Minister’s representative noted in her letter dated November 13, 2008, was
the “transmission of Catholic beliefs and convictions”. As this letter
to Loyola makes clear, in the Minister’s view, a program that departs in any
way from the ERC Program’s posture of strict neutrality, even partially, cannot
achieve the state’s objectives of promoting respect for others and openness to
diversity. This was also the position
that Quebec took before this Court.
[58]
The Minister’s decision necessarily engages religious
freedom. The starting point, and the inspiration for most of this Court’s
subsequent jurisprudence about religious freedom, is R. v. Big M Drug Mart
Ltd., [1985] 1 S.C.R. 295, where Dickson J. (as he then was), writing for
the majority, articulated his visionary approach to freedom of religion:
The essence of the concept of
freedom of religion is the right to entertain such religious beliefs as a
person chooses, the right to declare religious beliefs openly and without fear
of hindrance or reprisal, and the right to manifest religious belief by worship
and practice or by teaching and dissemination. But the concept means more than
that.
Freedom can primarily be
characterized by the absence of coercion or constraint. . . .
Coercion includes not only such blatant forms of compulsion as direct commands
to act or refrain from acting on pain of sanction, coercion includes indirect
forms of control which determine or limit alternative courses of conduct
available to others. Freedom in a broad sense embraces both the absence of
coercion and constraint, and the right to manifest beliefs and practices. Freedom
means that, subject to such limitations as are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of
others, no one is to be forced to act in a way contrary to his beliefs or his
conscience.
What may appear good and
true to a majoritarian religious group, or to the state acting at their behest,
may not, for religious reasons, be imposed upon citizens who take a contrary
view. The Charter safeguards religious minorities from the threat of
“the tyranny of the majority”. [Emphasis added; pp. 336-37.]
[59]
Justice Dickson’s formulation of religious
freedom is founded on the idea that no one can be forced to adhere to or
refrain from a particular set of religious beliefs. This includes both the individual and collective
aspects of religious belief: Hutterian Brethren, at paras. 31, 130 and
182; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 781.
In the words of Justice LeBel: “Religion is about religious beliefs, but also
about religious relationships” (Hutterian Brethren, at para. 182).
[60]
Religious freedom under
the Charter must therefore account for the socially embedded nature of
religious belief, and the deep linkages between this belief and its
manifestation through communal institutions and traditions: Victor
Muñiz-Fraticelli and Lawrence David, “Whence a nexus with religion? Religious
institutionalism in a Canadian context”, forthcoming, at p. 2; Dieter Grimm, “Conflicts
Between General Laws and Religious Norms” (2009), 30 Cardozo L. Rev.
2369, at p. 2373. To fail to recognize this dimension of religious belief
would be to “effectively denigrate those religions in which more emphasis is
placed on communal worship or other communal religious activities”: Dwight
Newman, Community and Collective Rights: A Theoretical Framework for Rights
held by Groups (2011), at p. 78. See also Will Kymlicka, Multicultural
Citizenship: A Liberal Theory of Minority Rights (1995), at p. 105.
[61]
These collective
aspects of religious freedom — in this case, the collective manifestation and
transmission of Catholic beliefs through a private denominational school — are
a crucial part of Loyola’s claim. In S.L., this
Court held that the imposition of the ERC Program in public schools did not
impose limits on the religious freedom of individual students and parents.
This case, however, can be distinguished from S.L. because Loyola is a
private religious institution created to support the collective practice of
Catholicism and the transmission of the Catholic faith. The question is not
only how Loyola is required to teach about other religions, but also how
it is asked to teach about the very faith that animates its character and the
comparative relationship between Catholicism and other faiths. The Minister’s
decision therefore demonstrably interferes with the manner in which the members
of an institution formed for the very purpose of transmitting Catholicism, can
teach and learn about the Catholic faith. This engages religious freedom
protected under s. 2 (a) of the Charter .
[62]
I agree with Loyola
that the Minister’s decision had a serious impact on religious freedom in this
context. To tell a Catholic school how to explain its faith undermines the
liberty of the members of its community
who have chosen to give effect to the collective dimension of their religious
beliefs by participating in a denominational school.
[63]
As Justice Dickson observed in Big M
Drug Mart, “whatever else freedom of conscience and
religion may mean, it must at the very least mean this: government may not
coerce individuals to affirm a specific religious belief or to manifest a
specific religious practice for a sectarian purpose” (p. 347). Although the
state’s purpose here is secular, requiring
Loyola’s teachers to take a
neutral posture even about Catholicism means that the state is telling them how
to teach the very religion that animates Loyola’s identity. It amounts to
requiring a Catholic institution to speak about Catholicism in terms defined by
the state rather than by its own understanding of Catholicism.
[64]
It also interferes with the rights of parents to transmit
the Catholic faith to their children, not because it requires neutral
discussion of other faiths and ethical systems, but because it prevents a
Catholic discussion of Catholicism. This ignores the fact that an essential ingredient of the vitality of
a religious community is the ability of its members to pass on their beliefs to
their children, whether through instruction in the home or participation in
communal institutions.
[65]
This principle has received wide recognition in
international human rights instruments. Article 18(4) of the International
Covenant on Civil and Political Rights, 999 U.N.T.S. 171, for example,
protects the rights of parents to guide their children’s religious upbringing:
The States Parties to the present
Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to ensure the religious and moral education of
their children in conformity with their own convictions.
[66]
Though not relied on by Loyola in this case, s.
41 of the Quebec Charter also protects the rights of parents to
guide their children’s religious upbringing:
Parents or the persons acting in their
stead have a right to give their children a religious and moral education in
keeping with their convictions and with proper regard for their children’s
rights and interests.
[67]
Ultimately, measures which
undermine the character of lawful religious institutions and disrupt the
vitality of religious communities represent a profound interference with
religious freedom.
[68]
There is, on the other hand,
insufficient demonstrable benefit to the furtherance of the state’s objectives
in requiring Loyola’s teachers to teach Catholicism from a neutral
perspective. In her letter dated November 13, 2008
explaining her decision to deny Loyola’s exemption, the Minister sets out her
reasons for rejecting Loyola’s proposed alternative curriculum:
[translation]
•
. . . The approach to and the
conception of the common good developed in the Ethics and Religious Culture
program [and those] proposed by Loyola High School are very different. . . .
[T]he program proposed by Loyola . . . is based on the Catholic faith
and its main goal is the transmission of Catholic beliefs and convictions.
•
. . . the ethics aspect of the program
proposed by Loyola . . . focuses on the teaching of moral reference
points laid down by the Catholic Church.
•
. . . the program does not meet the
requirements for the Ethics and Religious Culture program in terms of religious
culture, as religions are studied in connection with the Catholic religion.
•
. . . the . . . program does
not lead the student to reflect on the common good, or on ethical issues, but
rather to adopt the Jesuit perspective of Christian service.
These
passages reflect the central problems with the Minister’s decision: it treats
teaching any part of the proposed alternative program from a Catholic
perspective as necessarily inimical to the state’s core objectives in imposing
the ERC Program and it gives no weight to the values of religious freedom
engaged by the decision. There is, in short, no balancing of freedom of
religion in relation to the statutory objectives. The result is a
disproportionate outcome that does not protect Charter values as fully
as possible in light of those statutory objectives.
[69]
In the Quebec context,
where private denominational schools are authorized, forcing a religious
school to teach its own religion from a non-religious perspective does not
assist in realizing the ERC Program’s basic curricular
goals of encouraging among students respect for others and openness to others. The
Minister’s decision suggests that engagement with an
individual’s own religion on his or her own terms can simply be presumed to
impair respect for others. This assumption runs counter to the
objectives of the regulatory scheme as a whole and it has a disproportionate
impact on the values underlying religious freedom in this context. This
necessarily renders the Minister’s decision unreasonable.
[70]
The disproportionate nature of
this decision is reinforced by the fact that the Minister’s decision
effectively prohibits Loyola from teaching about Catholic ethics from a
Catholic perspective. Catholic doctrine and Catholic ethics are simply too
intertwined to make it possible to teach one from a religious perspective and
the other neutrally. More to the point, there is no reason to distinguish
between the two when it comes to religious freedom. In both cases, preventing
Loyola from teaching Catholicism seriously impairs its Catholic identity.
[71]
Loyola, as previously noted,
conceded before this Court that it was prepared to teach the first competency —
world religions other than Catholicism — from a neutral perspective. It
sought, however, to be exempt from teaching the ethics of other
religions from a neutral perspective, and proposed instead to do so from a
Catholic perspective. Unlike my colleagues in their concurring opinion,
however, I agree with the Court of Appeal that requiring Loyola to teach about
the ethics of other religions in a neutral, historical and
phenomenological way would not interfere disproportionately with the relevant Charter
protections implicated by the decision. Justice Deschamps’s admonition
that exposing children to a variety of religious facts does not, in itself, infringe
on their parents’ religious freedom remains compelling in a denominational
school: S.L., at para. 40. I agree with her that in a multicultural
society, it is not a breach of anyone’s freedom of religion to be required to
learn (or teach) about the doctrines and ethics of other world religions in a
neutral and respectful way. See Reference re Same-Sex Marriage, [2004] 3
S.C.R. 698, at paras. 46 and 48.
[72]
But what does it mean to teach
about the ethics of other religions in a “neutral” and “objective” way in the
context of a religious school that is permitted to teach its own religion and
ethics from a religious perspective? My starting point is that in a religious high school, where students
are learning about the precepts of one particular faith throughout their
education, it is arguably even more important that they learn, in as objective
a way as possible, about other belief systems and the reasons underlying those
beliefs.
[73]
I quickly acknowledge
that in a religious school, teaching other ethical frameworks in a neutral way
may be a delicate exercise. A school like Loyola must be allowed some
flexibility as it navigates these difficult moments. Catholicism’s answer to
ethical questions, for instance, will sometimes conflict with the approach
taken by the ethics of other religions. It
would be surprising if, in classes discussing other belief systems, students
did not ask for comparative explanations, questions Loyola’s teachers are
clearly free to answer. A
comparative approach that explains the Catholic ethical perspective and
responds to questions about it is of course legitimate.
[74]
But the fact that there
are difficulties in implementation does not mean the state should be required
to throw up its hands and abandon its objectives. Those objectives are not
only of immense public importance, they are also, as this Court confirmed in S.L.,
constitutional. Pursuing them in a religious school may require the Minister
to accept some adjustments to the program to make it align with the school’s
religious character, but these adjustments need not mean the wholesale
replacement of objective explications of other religions’ ethical systems with
a program that frames its discussion of ethics primarily through the moral lens
of a school’s religious perspective.
[75]
The alternative program
that Loyola submitted to the Minister would teach other ethical frameworks
primarily through the lens of Catholic ethics and morality. Even if Loyola’s teachers
do so respectfully, this fundamentally transforms the ethics component of the
ERC Program from a study of different ethical approaches into a class on
Catholicism. The resulting risk is that
other religions would necessarily be seen not as differently legitimate belief
systems, but as worthy of respect only to the extent that they aligned with the
tenets of Catholicism. This
contradicts the ERC Program’s goal of ensuring respect for those whose
religious beliefs are different, a goal no less worthy in a religious school
than in a public one.
[76]
The key is in how the discussion
is framed. An emphasis on objective instruction insofar as possible, and on
teaching other ethical positions in their own right, does not mean stifling
debate or denying Loyola’s Catholic identity. On the contrary, the framework
of the discussions would be wider because they are not based solely on a
particular religion’s perspective. That
religion’s own ethical framework would necessarily be part of the discussion,
but the role will be one of significant participant rather than hegemonic
tutor.
[77]
There is no doubt that this will
not always be easy. The question is, given the undisputed significance of the ERC
Program’s objectives, can requiring Loyola’s teachers to teach and discuss
other religions and their ethical positions as objectively as possible really
be seen as a serious interference with freedom of religion merely because it
may be difficult to execute neatly?
[78]
I have difficulty seeing how this can undermine
the values of religious freedom. I do not dispute that the belief systems
Loyola’s teachers are required to explain to their students may not reflect
their personal beliefs, or Loyola’s institutional allegiances. But teaching about the
ethics of other religions is largely a factual exercise. It need not be a clash
of values. Nor is asking Loyola’s teachers to teach other religions and
ethical positions as objectively as possible a requirement that they shed their
own beliefs. It is, instead, a pedagogical tool utilized by good teachers for
centuries — let the information, not the personal views of the teacher, guide
the discussion. The fact that those personal principles are not central when
discussing the ethical principles of other religions does not mean that the
Loyola teacher is silenced, or forced to forego his own beliefs, or even
appears to be doing so. It also does not mean that Loyola’s teachers are foreclosed from
explaining the Catholic perspective and its differences from other faiths.
[79]
In any event, it is the Minister’s
decision as a whole that must reflect a proportionate and therefore reasonable
balancing of the Charter protections and statutory objectives in issue.
It does not, in my respectful view, because it rests on
the assumption that a confessional program cannot achieve the objectives of the
ERC Program. This assumption led the Minister to a decision that does not,
overall, strike a proportionate balance between the Charter protections
and statutory objectives at stake in this case. It is, with respect,
unreasonable as a result.
[80]
This is not to suggest, however, that in a
religious school, the Minister is required to allow the ERC Program — a program
that is framed as a tool to teach students about different world religions and
ethical beliefs — to be replaced by a program that focuses on that religion’s
doctrine and morality. To ask a religious school’s teachers to discuss other
religions and their ethical beliefs as objectively as possible does not
seriously harm the values underlying religious freedom. These features of the
ERC Program are essential to achieving its objectives. But preventing a school
like Loyola from teaching and discussing Catholicism in any part of the program
from its own perspective does little to further those objectives while at the
same time seriously interfering with the values underlying religious freedom.
[81]
I would therefore allow
the appeal, set aside the Minister’s decision, and remit the matter to the
Minister for reconsideration in light of these reasons. An exemption cannot be
withheld on the basis that Loyola must teach Catholicism and Catholic ethics
from a neutral perspective. In the circumstances, I would make no order for
costs.
The reasons of
McLachlin C.J. and Rothstein and Moldaver JJ. were delivered by
The
Chief Justice and Moldaver J. —
I.
Overview
[82]
Loyola, a private Catholic high school,
challenges the decision of the Minister of Education, Recreation and Sports
(“Minister”) refusing to grant it an exemption from the Ethics and Religious
Culture course (“ERC Program”), a compulsory program requiring the teaching of
world religions, ethics and dialogue in a neutral way. The application judge
set aside the Minister’s decision, holding that it violated Loyola’s
constitutional right to freedom of religion. The Quebec Court of Appeal
reversed that decision. Loyola now appeals with leave to this Court.
[83]
Like our colleague Abella J., we would allow the
appeal. In our view, the Minister’s decision cannot be upheld because it
failed to protect Loyola’s right to religious freedom. In reaching that
conclusion, we respectfully differ from our colleague on a number of points,
including her choice of remedy.
II.
Background Facts
[84]
The government of Quebec, as part of a plan of
progressive secularization of the public school system, incorporated the ERC
Program into its core curriculum. Beginning in 2008, all schools were required
to deliver a program teaching world religions, ethics and dialogue from a
secular, morally neutral perspective. The legislative and regulatory scheme
provided exemptions for private schools to teach an equivalent program, with
requests for exemptions to be assessed by the Minister.
[85]
Loyola High School is a respected Catholic
private school, founded in 1848 as part of the Collège Sainte-Marie,
administered by the Jesuit Order and serving the Catholic community of
Montréal. It applied for an
exemption to teach a program that, in its view, achieved the same educational
objectives of the ERC Program, but in harmony with its religious convictions.
The Minister refused, on the basis that Loyola’s proposed program had a
religious perspective that was unacceptable, and that it amounted to a program
of moral education that did not follow the required neutral and cultural
approach to religion and ethics.
III.
Procedural History
[86]
The application judge
heard evidence from several expert and lay witnesses, and made extensive
findings of fact which we address in greater detail in our analysis. He found
that the Minister’s refusal constituted a serious infringement of Loyola’s
right to religious freedom. In the result, he granted Loyola’s application,
quashed the Minister’s decision, and ordered an exemption (2010 QCCS 2631).
[87]
On appeal by the
Minister, the Quebec Court of Appeal applied the administrative law framework
from Doré v. Barreau
du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and concluded that the
Minister’s decision was reasonable. The Court of Appeal expressed skepticism
that denying an exemption to teach a modified version of the ERC Program posed any
infringement on Loyola’s freedom to teach the Catholic religion. Furthermore,
it concluded that even if there were an infringement, it would be [translation] “trivial because [the ERC
Program] is only one class among many” and “the program does not require
teachers to refute the precepts of the Catholic religion, but only to abstain
from expressing their opinions or convictions” (2012 QCCA 2139, at para. 174
(CanLII)). In consequence, the Court of Appeal overturned the application
judge, and reinstated the decision of the Minister. As we explain, we
respectfully disagree with the Court of Appeal’s conclusion that the
infringement was trivial. Indeed, for reasons that will become apparent, we
are satisfied that the infringement had a substantial impact on Loyola’s right
to religious freedom.
IV.
Analysis
[88]
We are required to address several issues in
deciding this appeal. First, we must decide whether Loyola as a religious
organization is entitled to the constitutional protection of freedom of
religion. Concluding that it is, we analyze the proper interpretation of the
legislative and regulatory scheme at issue in this appeal, including the ERC
Program and the exemption provision. We review the content of Loyola’s
proposed equivalent program, and then evaluate the Minister’s decision in light
of Loyola’s constitutional right to religious freedom — first, determining
whether Loyola’s freedom of religion was breached, and second, determining
whether that breach was minimally impairing and therefore justified under s. 1
of the Canadian Charter of Rights and Freedoms (the “Canadian Charter ”
or “Charter”). Finding that Loyola’s freedom of religion was infringed,
and that the infringement was not minimally impairing, we offer guidelines on
the appropriate scope of an equivalent program that would comply with the Charter
while meeting the objectives of the ERC Program. Finally, we determine
that the appropriate remedy is an order of mandamus granting an exemption to
Loyola to teach such a program.
A.
Does Loyola as a Religious Organization Enjoy
Freedom of Religion Under Section 2(a) of the Canadian Charter and Section 3 of
the Quebec Charter?
[89]
Loyola is a religious
non-profit corporation constituted under Part III of Quebec’s Companies
Act, CQLR, c. C-38. For over a century,
it has pursued a vocation of providing Catholic
religious education for young men. Loyola asserts that, as a religious
organization, it is protected by the guarantee of freedom of religion in the Canadian
Charter and the Charter of human rights and freedoms, CQLR, c. C-12
(the “Quebec Charter”).
[90]
The Attorney General of
Quebec contends that Loyola enjoys no such constitutional protection because it
is not a natural person, but merely a legal person: religious freedom protects
sincerely held beliefs, and a corporation is capable of neither sincerity nor
belief. This raises the question of whether religious organizations are
protected by the guarantee of freedom of religion.
[91]
In our view, Loyola may
rely on the guarantee of freedom of religion found in s. 2 (a) of the Canadian
Charter . The communal character of religion means
that protecting the religious freedom of individuals requires protecting the
religious freedom of religious organizations, including religious educational
bodies such as Loyola. Canadian and international jurisprudence
supports this conclusion.
[92]
This Court has affirmed that freedom of religion
under s. 2 (a) of the Canadian Charter has both an individual and
a collective dimension. In Syndicat Northcrest v. Amselem, 2004 SCC 47,
[2004] 2 S.C.R. 551, Bastarache J., writing in dissent but not on this point,
quoted Professor Timothy Macklem for the proposition that
religions
are necessarily collective endeavours. . . . It follows that any
genuine freedom of religion must protect, not only individual belief, but the
institutions and practices that permit the collective development and
expression of that belief.
(Para. 137,
quoting “Faith as a Secular Value” (2000), 45 McGill L.J. 1, at p. 25.)
[93]
In Alberta v. Hutterian Brethren of Wilson
Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, Justice Abella and Justice LeBel,
both writing in dissent but not on this point, emphasized the collective
dimension of religious freedom. Justice Abella noted the “group, or
‘community’, aspect of religious freedom” (para. 131), while Justice LeBel
observed:
Religion is
about religious beliefs, but also about religious relationships. . . .
[This appeal] raises issues about belief, but also about the maintenance of
communities of faith. We are discussing the fate . . . of a
community that shares a common faith and a way of life that is viewed by its
members as a way of living that faith and of passing it on to future
generations. [Emphasis added; para. 182.]
[94]
The individual and collective aspects of freedom
of religion are indissolubly intertwined. The freedom of religion of
individuals cannot flourish without freedom of religion for the organizations
through which those individuals express their religious practices and through
which they transmit their faith.
[95]
In this respect, the guarantee of freedom
of religion resembles the guarantees of freedom of expression, freedom from
unreasonable search and seizure and trial within a reasonable time, all of which
have been held to apply to corporations: see Edmonton
Journal v. Alberta (Attorney General), [1989] 2
S.C.R. 1326; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. CIP
Inc., [1992] 1 S.C.R. 843. As with s. 2 (a),
the text of these rights refers not to “individuals” but to “everyone” or “any
person”, which has been interpreted as including corporations: see D. Gibson, The
Law of the Charter: Equality Rights (1990), at pp. 53-54.
[96]
International human rights instruments recognize the
communal character of religion and support the extension of constitutional
protection to the organizations through which congregants worship and teach
their faith. Article 18 of the Universal
Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71
(1948), provides:
Everyone has
the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion
or belief in teaching, practice, worship and observance.
Article 9 of the European
Convention on Human Rights, 213 U.N.T.S. 221, contains a virtually
identical provision. Similarly, the International Covenant on Civil and
Political Rights, 999 U.N.T.S. 171, to which Canada is a signatory,
provides:
Article
18. 1. Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include freedom to have or
to adopt a religion or belief of his choice, and freedom, either individually or
in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.
. . .
4.
The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.
[97]
The Charter should be presumed to provide
at least as great a level of protection as is found in the international human
rights documents that Canada has ratified: Health Services and Support —
Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007]
2 S.C.R. 391, at para. 70. It follows that the collective aspect of freedom of
religion should find protection under the Charter.
[98]
Foreign jurisprudence supports Loyola’s claim to
freedom of religion: see Sindicatul “Păstorul Cel Bun” v. Romania (2014),
58 E.H.R.R. 10, at para. 136; Metropolitan Church of Bessarabia v. Moldova,
No. 45701/99, ECHR 2001-XII; Hosanna-Tabor Evangelical Lutheran Church and
School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012); National
Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).
[99]
The Attorney General of Quebec points out that
in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, Dickson C.J.
commented that “a business corporation cannot possess religious beliefs” (p.
784). However, a religious organization may in a very real sense have
religious beliefs and rights. Thus, Dickson C.J. referred to the s. 2 (a)
freedom of “individuals and groups” (p. 759 (emphasis added)),
describing that freedom using language from R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p.
336, as “the right to manifest religious belief by
worship and practice or by teaching and dissemination” (p. 757).
[100]
On the submissions before us, and given the
collective aspect of religious freedom long established in our jurisprudence,
we conclude that an organization meets the requirements for s. 2 (a)
protection if (1) it is constituted primarily for religious purposes, and (2)
its operation accords with these religious purposes.
[101]
The precise scope of these requirements may
require clarification in future cases which test their boundaries, but it is
evident that Loyola falls within their ambit. It is a non-profit religious
corporation constituted for the purpose of offering a Jesuit education to
children within Quebec’s Catholic religious community. It has operated for
over a century in accordance with this religious educational purpose.
[102]
We note that the same result is reached under s.
3 of the Quebec Charter. If anything, the conclusion is clearer,
because the Quebec Charter accords freedom of religion to “[e]very
person”, unlike the Canadian Charter which uses the more
ambiguous “[e]veryone”. Under Quebec’s Interpretation Act, CQLR, c.
I-16, “the word ‘person’ includes natural or legal persons, . . .
unless inconsistent with the statute or with the special circumstances of the
case”: s. 61(16). No
inconsistency arises here; on the contrary, for the reasons just discussed, the
circumstances favour recognition of the right of freedom of religion for religious
organizations.
B.
The Interpretation of the Legislative and
Regulatory Scheme at Issue
[103]
To understand and evaluate the Minister’s
decision, it is necessary to understand the legislative and regulatory scheme
under which it was made.
[104]
The starting point is the legislation. As of
2000, religious schools in Quebec can exist only as private schools. The
compulsory curriculum set by the Minister applies to all schools, including
private schools: An Act
respecting private education, CQLR, c. E-9.1, s. 25. As of the 2008-2009
school year, the ERC Program formed part of the compulsory curriculum for all
schools in the province.
[105]
The legislation imposing the compulsory
curriculum on public and private schools contains a provision authorizing the
government to adopt regulations to provide exemptions to particular
institutions. Section 111 of the Act respecting private education
states:
111. The Government may, by regulation . . .,
. . .
(7) . . . authorize . . .
the Minister to exclude, on the conditions he may determine, persons, bodies,
institutions or educational services from all or some of the provisions of this
Act . . .;
[106]
Pursuant to this power, the government of Quebec
adopted s. 22 of the Regulation respecting the application of the Act
respecting private education, CQLR, c. E-9.1, r. 1, which allows private
schools to obtain exemptions from teaching the compulsory curriculum:
22. Every
institution shall be exempt from the [requirement to teach the compulsory
curriculum] provided the institution dispenses programs of studies which the
Minister of Education, Recreation and Sports judges equivalent.
[107]
When the government inserted the ERC Program
into the compulsory curriculum, it did not exclude it from the s. 22 exemption
provision. It is therefore open to private religious schools to apply for an
exemption from the requirement to teach the ERC Program. Loyola did so, and
the Minister refused the exemption, giving rise to this litigation.
[108]
The legislative and regulatory scheme imposes a
compulsory curriculum, but modifies this by allowing individual schools to
obtain exemptions. This allows Quebec to satisfy the educational objectives of
the compulsory curriculum, while permitting accommodations for particular
schools on the basis of their circumstances or needs. Applied to the ERC
Program, this scheme allows Quebec to require that religion be taught from a
secular, cultural and phenomenological viewpoint in public schools, while
allowing private religious schools to adopt an alternative but equivalent
approach that meets the basic objectives of the program but preserves the
school’s freedom of religion.
[109]
The preamble of the Act specifying the Minister’s powers and
obligations (An Act respecting the Ministère de l’Éducation, du Loisir et du
Sport, CQLR, c. M-15) confirms that the reliance on the Minister’s
discretion to approve exemptions is intended to ensure respect for the
religious freedoms of individuals and groups. It states:
WHEREAS every child is
entitled to the advantage of a system of education conducive to the full
development of his personality;
Whereas parents have the
right to choose the institutions which, according to their convictions, ensure
the greatest respect for the rights of their children;
Whereas persons and groups
are entitled to establish autonomous educational institutions and, subject to
the requirements of the common welfare, to avail themselves of the
administrative and financial means necessary for the pursuit of their ends;
[110]
The department’s own publications support the conclusion
that the legislative and regulatory scheme is intended to operate in a way that
respects the religious freedoms of individuals and groups in the school
system. In a 2005 ministerial proposal, the Minister stated that “[r]especting
the fundamental right to the freedom of conscience and religion is the basis of
all ethics and religious education”: Establishment of an ethics and
religious culture program: Providing future direction for all Québec youth
(2005), at p. 6. To similar
effect, the Ethics and Religious Culture Program section of the
department’s website promises that the legislative and regulatory scheme — the
generic ERC Program supplemented by the s. 22 exemption provision, which
replaced a prior diversity of moral education programs including denominational
programs — will “respec[t] the freedom of conscience and religion of parents,
students and teachers”: “Ethics and Religious Culture Program: Contributing to
harmonious social relations in Québec society today” (online).
[111]
Indeed, the department’s website notes that
among the pre-existing programs was a “Catholic Religious and Moral
Instruction” program, and states that the ERC Program will replace such
programs in order to “offer the same education to all Québec students”.
[112]
Section 22 functions to ensure the legislative
and regulatory scheme’s compliance with the freedom of religion guaranteed by
s. 2 (a) of the Charter . It guards against the possibility that,
in certain situations, the mandatory imposition of a purely secular curriculum
may violate the Charter rights of a private religious school. This safeguard is consistent with the obligations of
the state in a multicultural society. As LeBel J. observed in his concurring
reasons in S.L. v. Commission scolaire des Chênes, 2012 SCC 7,
[2012] 1 S.C.R. 235, in the context of the public school system, “[u]nder the constitutional principles governing state action, the
state has neither an obligation to promote religious
faith nor a right to discourage religious faith in its
public education system” (para. 54). The state may not
discourage religious faith in the public education system; this obligation has
even more resonance in the context of a private religious school.
C.
Analytical Approach Under the Charter
[113]
Section 2 (a) of the Charter
protects the right to freedom of religion. The state can limit this right, but
only if it can show that the limitation is “reasonable” and “demonstrably
justified in a free and democratic society” under s. 1 of the Charter .
The Charter requirement that limits on rights be reasonable and
demonstrably justified may be expressed in different ways in different
contexts, but the basic constitutional requirement remains the same.
[114]
The first issue is whether Loyola’s freedom of
religion was infringed by the Minister’s decision. The second issue is whether
the Minister’s decision — that only a purely secular course of study may serve
as an equivalent to the ERC Program — limits Loyola’s freedom of religion more
than reasonably necessary to achieve the goals of the program. However one
describes the precise analytic approach taken, the essential question is this:
did the Minister’s decision limit Loyola’s right to freedom of religion
proportionately — that is, no more than was reasonably necessary?
[115]
For reasons that follow, we conclude that both
of these issues must be answered in the affirmative.
D.
Loyola’s Proposed Equivalent Program
[116]
The nature of Loyola’s proposed equivalent
program lies at the heart of this appeal. As such, it is worth examining in
some detail.
[117]
The ERC Program has two core objectives:
recognition of others and the pursuit of the common good. Furthering these
objectives, the program teaches students to develop competencies in
understanding religion (the “world religions competency”), reflecting on
ethical questions (the “ethics competency”), and engaging in dialogue (the
“dialogue competency”).
[118]
Several sources of information shed light on
exactly how Loyola proposes to teach these competencies in its alternative to
the ERC Program. On March 30, 2008, Loyola sent its first letter to the
Minister requesting an exemption from the ERC Program, which gave a broad
overview of the objectives of its proposed equivalent program. Following a
request to submit further information, Loyola provided a three-page document
with a more detailed summary of its proposed program. After receiving an
initial negative response, but before the Minister’s final decision to deny an
exemption, Loyola sent a further, three-page letter to the Minister on August 25,
2008, containing more details about its proposal.
[119]
The precise nature of the proposed equivalent
program was further clarified in testimony heard by the application judge, and
Loyola’s written and oral submissions to this Court. In fairness, these
clarifications were not available to the Minister when she rendered her
decision. Nevertheless, they are helpful in determining the form and substance
of the program Loyola is proposing.
[120]
Loyola describes a program of study that
achieves the ERC Program’s objective of [translation]
“promot[ing] . . . tolerance and respect for all”, but that is
delivered “in a manner respectful of the Catholic faith and the moral values
that form the cornerstone of our school” (application judge’s reasons, at para.
35). The three-page program summary outlines a diverse mix of content that
includes doctrinal instruction on Catholic history and dogma, comparative study
of various world religions, and consideration of an array of ethical and moral
issues.
(1)
How Loyola’s Proposed Program Approaches the
World Religions Competency
[121]
The world religions aspect of Loyola’s program
includes content on Judaism, Islam, Buddhism, Hinduism, and North American
native spirituality, and teaches students to examine “religious praxis, sacred
stories, myths, and rituals found in religious cultures”. In correspondence
with the Minister, Loyola asserted that its program is actually [translation] “much more thorough” than
the ERC Program in its approach to understanding religion (application judge’s
reasons, at para. 38). To ensure that the program achieves the goal of [translation] “promoting tolerance and
acceptance of others”, it goes beyond a “simple explanation” of other
religions’ external customs to include an examination of their fundamental
beliefs (ibid.). Loyola’s program also “devotes a significant amount of
study to Roman Catholic Christianity” (A.F., at para. 13).
[122]
Paul Donovan, Loyola’s Principal, testified
about Loyola’s in-depth approach to teaching other religions, giving examples
of having a rabbi visit to discuss Judaism or an imam to discuss Islam, to aid
students in “getting to know what that faith is really about”. Mr. Donovan
stated “that’s something that we do quite regularly”. Loyola’s program
approaches other religions by reference to the concepts of God and faith “as
understood by the tradition under study itself”, and to this extent Loyola
takes no issue with the professional posture of objectivity that the ERC
Program requires of teachers (A.F., at para. 13). As noted by Loyola’s counsel
in his oral submissions to this Court, “[y]ou can’t
teach Buddhism from the Catholic point of view” and “there is no issue with the
way the program requires world religions to be taught” (transcript, at p. 4).
[123]
Unlike its approach to teaching other religions,
Loyola’s method of teaching Catholicism is neither neutral nor objective, but
rather takes a denominational approach. This approach aims to “provide the
students with a sound formation in the basic beliefs, rituals and practices of
our Faith”, including “the realization that
Christianity cannot remain something purely internal, but must express itself
in our relationships with others and the world around us”. Loyola’s program
“present[s] its faith in a manner where students are invited to engage with it
in a living way, not merely as a subject of detached intellectual curiosity”
(A.F., at para. 25), premised on the belief that in
“teaching its own faith . . . it must do so from the Catholic
perspective” (transcript, at p. 6).
(2)
How Loyola’s Proposed Program Approaches the
Ethics Competency
[124]
Loyola readily concedes that, as with its
teaching of Catholicism within the world religions competency, the ethics
competency is also taught from the Catholic perspective:
With respect to the ethics component,
its central focus is the social teaching of the Roman Catholic Church. . . .
[A]s one would expect of a
Jesuit school, Loyola proposes the social and ethical teachings of the Catholic
Church as a basis on which students are invited to govern themselves. [A.F., at para. 13]
Loyola’s program imparts
a “Catholic vision” on topics such as “moral decision making, good
conscience-in-action, justice, honesty, respect for persons, respect for
creation, reverence for human life, compassion, sexuality, and peacemaking”.
[125]
However, while the Catholic perspective on
ethical issues is given prominence, Loyola’s program also includes
“[e]xploration of ethical systems as understood by various religions and non-religious
value systems”. Described in its August 25 submission to the Minister,
Loyola’s program would have students [translation]
“explor[e] a range of ethical systems, beliefs and practices”, and would
encourage them “to think critically” (application judge’s reasons, at para.
38). As further clarified in this appeal:
. . . on all
significant ethical questions, students are required to understand not only the
position of the Roman Catholic Church, but also those of all major thinkers and
viewpoints. . . .
[T]hey
are free to criticise the position of the Catholic Church on any given issue
and will be graded on the basis of the quality of their reasoning, not on the
basis of adherence to the Catholic position in preference to other positions.
[A.F., at para. 13]
In all aspects of
Loyola’s program, including the ethics competency, [translation] “the goal of teaching respect for all,
regardless of our individual beliefs or customs, is of crucial importance”,
informed by “our ethical ideal . . . not simply to ‘tolerate’ others
but indeed to ‘love’ others, as our Christian faith teaches us” (application
judge’s reasons, at para. 38).
(3)
How Loyola’s Proposed Program Approaches the
Dialogue Competency
[126]
None of Loyola’s submissions to the Minister
explicitly include the word “dialogue”, and this was one of the justifications
cited by the Minister in denying Loyola’s request for an exemption. However,
looking at the materials in context and in their entirety, it is evident that
the proposed program contemplates more than students passively listening to a
teacher’s lecture. The program summary uses active verbs like “students
explore” and “[s]tudents examine”. Loyola’s second letter to the Minister
stated that [translation] “[w]e
have always encouraged our students to think critically, to obtain information,
to be aware of the principal ethical issues and to examine popular beliefs and
practices” (application judge’s reasons, at para. 38). The application judge
had no difficulty making the following finding of fact:
[translation] In the ERC program,
dialogue is defined as consisting of two interactive dimensions, that is,
individual deliberation and the exchange of ideas with others.
A
simple reading of [Loyola’s program summary], supplemented by [Loyola’s
correspondence with the Minister], unequivocally confirms that the program
dispensed by Loyola contains these two dimensions. [Emphasis added; paras.
150-51.]
(4)
Does Loyola’s Proposed Program Conform to the
Objectives of the ERC Program?
[127]
In his reasons for judgment, the application
judge concluded that
[translation] Loyola’s program is comparable to the ERC
program established by the Minister. . . . [T]eaching . . .
Loyola’s program in accordance with the Catholic faith does not change its
nature or make it lose its status as an equivalent program.
The
cultural approach advocated in the ERC program is in no way incompatible or
irreconcilable with the denominational approach required by Loyola’s religious
precepts. [paras. 182-83]
In our view, this finding
was open to the application judge, and we see no reason to interfere with it.
While Loyola’s alternative could perhaps have been more clearly presented in
the initial submissions to the Minister, the contours of the program have been
fleshed out more fully in testimony heard before the application judge and in
Loyola’s submissions on appeal. At its most general level, the program takes
the following form: (1) regarding the world religions competency, Loyola will
teach Catholicism from the Catholic perspective, but will teach other religions
objectively, respectfully and with reference to religious precepts as
understood by those other faiths themselves; (2) regarding the ethics
competency, Loyola will emphasize the Catholic point of view on ethical
questions, but will ensure all ethical points are presented on any given issue,
and will welcome disagreement from students on Catholic moral teachings; and
(3) regarding the dialogue competency, Loyola will encourage students to think
critically and engage with their teachers and with each other in exploring the
topics covered in the program.
[128]
As is apparent, Loyola’s program departs from
the generic ERC Program in two key respects. First, Loyola proposes to teach
Catholicism from the Catholic perspective. Second, while ensuring that all
ethical points are presented and encouraging students to think critically,
Loyola proposes an approach that emphasizes the Catholic point of view when
discussing ethical questions. In both respects, Loyola’s teachers would depart
from the strict neutrality required under the ERC Program.
[129]
Justice Abella notes in her reasons that “the
normative core of Loyola’s proposed curriculum is the doctrine and belief
system of the Catholic Church” (para. 25). This may be true, but it doesn’t
tell the whole story. Surrounding that normative core is a rich and full
exploration of non-Christian religious beliefs, and of ethical perspectives
that do not mirror Catholic moral teachings. Leaders from other religious
communities are welcomed into the classroom to ensure a robust understanding of
other faiths and traditions, beyond the neutral description of religious
customs and practices envisioned by the ERC Program. Students are allowed,
even encouraged, to critique Catholic moral teachings. There is nothing to
suggest Loyola’s proposal is in any way ill suited to achieve the two key
objectives of the ERC Program: recognition of others and the pursuit of the
common good. Nor does it fail to address the competencies of understanding
religion, reflecting on ethical questions, and engaging in dialogue.
E.
Analysis of Loyola’s Religious Freedom Claim
[130]
Loyola challenges the Minister’s denial of an
exemption from the ERC Program as an infringement of its religious freedom. As
we have explained, Loyola is entitled to the freedom of religion protected by
s. 2 (a) of the Charter . This is not to say that the religious
freedoms of other actors are not implicated by the Minister’s denial. To the
extent that the ERC Program would require Loyola’s teachers to express a
neutral viewpoint on religious matters, their religious freedom may be at
issue. The religious freedom of the parents of Loyola’s students may be
implicated, as they have the right to seek moral and religious education for
their children. Perhaps even the religious freedom of Loyola’s students
themselves is raised by the denial of an exemption for Loyola to implement its
alternative program.
[131]
It is not necessary to conclusively decide these
matters. Deciding the case on the basis of the religious freedom of Loyola
itself is sufficient to dispose of this appeal. Similarly, it is not necessary
to consider whether any different analysis or result would arise under s. 3 of
the Quebec Charter.
(1)
The Extent of Religious Freedom Under Section 2(a)
of the Charter
[132]
The freedom of religion protected by s. 2 (a)
of the Charter is not limited to religious belief, worship and the
practice of religious customs. Rather, it extends to conduct more readily
characterized as the propagation of, rather than the practice of, religion. As
this Court held in Big M, “[t]he essence of the concept of freedom of
religion” includes “the right to manifest religious belief . . . by
teaching and dissemination” (p. 336). Thus, Loyola’s expressed desire to teach
its curriculum in accordance with Catholic beliefs falls within the scope of s.
2 (a)’s protection.
[133]
Big M also affirms that the interpretation
of the religious freedom guarantee should be “a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter’s protection” (p.
344).
(2)
Did the Minister’s Decision Infringe Loyola’s
Rights Under Section 2(a) of the Charter?
[134]
In Multani v. Commission scolaire
Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, — another case
involving religious freedom in the education context — this Court restated the
test for determining whether the rights guaranteed by s. 2(a) have been
infringed:
. . .
in order to establish that his or her freedom of religion has been infringed,
the claimant must demonstrate (1) that he or she sincerely believes in a
practice or belief that has a nexus with religion, and (2) that the impugned
conduct of a third party interferes, in a manner that is non-trivial or not
insubstantial, with his or her ability to act in accordance with that practice
or belief. [para. 34]
(a)
Applying the Legal Test to an Organizational
Claimant
[135]
As we have explained, the religious freedom
guarantee contained in the Charter protects not only natural persons but
also certain legal persons such as Loyola. The Attorney General of Quebec
argued against this result, in part because an organization lacks the capacity
for abstract thought and emotion and therefore cannot believe in
something. While we are not persuaded that this precludes extending s. 2 (a)
to cover certain categories of organizations, we recognize that where the
claimant is an organization rather than an individual, the “sincerity of
belief” inquiry required by our jurisprudence poses some difficulties. The
existing test need not be abandoned, but a few clarifications are warranted.
[136]
The two-part test for determining whether a claimant’s
freedom of religion under s. 2(a) has been infringed was first set down
in Amselem. That case offers considerable guidance on how to
determine a claimant’s sincerity of belief:
Assessment
of sincerity is a question of fact that can be based on several
non-exhaustive criteria, including the credibility of a claimant’s
testimony . . ., as well as an analysis of whether the alleged belief
is consistent with his or her other current religious practices. It is
important to underscore, however, that it is inappropriate for courts
rigorously to study and focus on the past practices of claimants in order to
determine whether their current beliefs are sincerely held. Over the course of
a lifetime, individuals change and so can their beliefs. Religious beliefs, by
their very nature, are fluid and rarely static. [Emphasis added; para.
53.]
In brief compass, courts
are counseled to determine sincerity of belief based on the credibility of a
claimant’s testimony, and whether the claimed belief is consistent with his or
her current religious practices, while being mindful that these criteria are
non-exhaustive. In the context of an individual, a rigorous scrutiny of past
practices is disfavoured, because religious beliefs frequently evolve over
time.
[137]
Determining which indicators are relevant is
necessarily influenced by the facts of each case, and will depend on the
specific claimant and the specific religious practice or belief that is at
issue. Ultimately, a court’s inquiry is not aimed at exposing the breadth and
depth of a person’s religious convictions to judicial scrutiny. The goal is
more practical and limited: “. . . the court’s role in assessing
sincerity is intended only to ensure that a presently asserted religious belief
is in good faith, neither fictitious nor capricious, and that it is not an
artifice” (Amselem, at para. 52).
[138]
There is no reason why the expressed belief of
an organization cannot be examined to ensure it is made in good faith and is
neither a fiction nor an artifice. We have already concluded that, as a
threshold matter, an organization seeking to assert a religious freedom claim
under the Charter must at a minimum demonstrate that its purpose is primarily religious, and that it operates in accordance
with this purpose. Rather than demonstrating a sincere belief — which we
readily concede a mere legal person is incapable of doing — an
organizational claimant must show that the claimed belief or practice is
consistent with both the purpose and operation of the organization.
[139]
In evaluating this consistency between the
claimed belief or practice and the organization’s purpose and operation, the
same non-exhaustive criteria from Amselem can be relied on. While an
organization itself cannot testify, the credibility of officials and
representatives who give testimony on the organization’s behalf will form part
of the assessment. Objective indicators will perhaps play a more prominent
role. It is proper to assess the claimed belief or practice in light of
objective facts such as the organization’s other practices, policies and
governing documents. The beliefs and practices of an organization may also
reasonably be expected to be more static and less fluid than those of an individual.
Therefore, inquiry into past practices and consistency of position would be
more relevant than in the context of a claimant who is a natural person.
[140]
The two-part test from Amselem and Multani,
modified to apply to an organization, yields the following questions: (1) Is
Loyola’s claimed belief that it must teach ethics and its own religion from the
Catholic perspective consistent with its organizational purpose and operation?
(2) Does the Minister’s decision to deny Loyola an exemption from the ERC
Program interfere with Loyola’s ability to act in accordance with this belief,
in a manner that is more than trivial or insubstantial? We are guided by the
extensive findings of fact made by the application judge in answering both of
these questions.
(b)
Loyola’s Religious Beliefs Are Consistent With
Its Organizational Purpose and Operation
[141]
This is not a case where the assessment of
consistency is difficult, or where there is a reasonable concern that the
expressed belief is made in bad faith or for an ulterior purpose. The
application judge made strong findings of fact, amply supported by the record
before him:
[translation] In the present case, the
evidence is clear and uncontradicted. Loyola and its members, including
Principal Donovan and President Fr. Brennan, are sincerely convinced that, to
accomplish their mission as a Catholic educational institution, Loyola must
teach ERC with its own program and according to the precepts of the Catholic
religion.
The
testimony of Loyola’s principal, Mr. Donovan, was unequivocal. The ten
principles explained in the booklet “What makes a Jesuit High School Jesuit?”
are present in all the activities of the school and in the teaching of all the
courses, not only the religion course. The precepts of the Catholic religion
are omnipresent at Loyola. [paras. 265-66]
[142]
The application judge heard testimony from
senior officials within Loyola’s organization, and found it to be credible. He
also considered objective evidence, including a comparison of Loyola’s present
classroom practices with the underlying principles of Jesuit education.
Loyola’s claimed belief was not contested by the Attorney General of Quebec.
Accordingly, we see no reason to disturb the application judge’s factual
findings.
(c)
The Minister’s Decision Substantially Interferes
With Loyola’s Ability to Act in Accordance With Its Religious Beliefs
[143]
Having found that Loyola’s belief in its
religious obligation to teach Catholicism and ethics from a Catholic
perspective is consistent with its organizational purpose and operation, it is
evident that the Minister’s denial of an exemption from the ERC Program — which
has the effect of requiring Loyola to teach its entire ethics and religion
program from a neutral, secular perspective — infringes Loyola’s freedom of religion
in violation of s. 2 (a) of the Charter .
[144]
Again, this conclusion is compelled by the application
judge’s extensive findings of fact. After hearing testimony from Loyola’s
principal, as well as experts in theology, religion, and philosophy, he determined
that [translation] “the ERC
program is incompatible with a Catholic education”, and that “Loyola would
violate the fundamental and mandatory laws of the Catholic Church that govern
it by teaching the ERC subject with the program established by the Minister”
(paras. 55 and 61). The application judge concluded that “the Minister’s
decision, both intrinsically and through its effects, interferes with the
freedom of religion guaranteed to Loyola” (para. 289). These findings are in
accordance with the evidence presented, much of which was not contested by the
Attorney General of Quebec.
[145]
We conclude that the Minister’s decision limited
Loyola’s freedom of religion in violation of s. 2 (a) of the Charter .
(3)
Is the Minister’s Decision Justified by Section 1
as a Reasonable Limit on Loyola’s Religious Freedom?
[146]
As discussed earlier, the core issue on this
appeal is whether the Minister’s insistence on a purely secular program of
study to qualify for an exemption limited Loyola’s right to religious freedom
no more than reasonably necessary to achieve the ERC Program’s goals. The
government bears the burden of showing this. If it fails to do so, the
Minister’s decision is unconstitutional and must be set aside.
[147]
The Minister denied Loyola’s request for an
exemption from the generic ERC Program after department staff conducted an
analysis of Loyola’s proposed program to determine whether it was equivalent.
This analysis was conducted in accordance with a direction from Jacques
Pettigrew, a senior civil servant, that for a course to have an equivalent
approach to the ERC Program it must be [translation]
“cultural and non-denominational” (application judge’s reasons, at para. 94).
Although the refusal letter to Loyola cited a variety of justifications, it is
apparent that, at its core, the Minister’s denial flowed from this definition
of “equivalent”.
[148]
In our view, there is nothing inherent in the
ERC Program’s objectives (recognition of others and pursuit of the common good)
or competencies (world religions, ethics, and dialogue) that requires a
cultural and non-denominational approach. As we noted earlier in discussing
the legislative and regulatory scheme, the intention of the government was to
allow religious schools to teach the ERC Program without sacrificing their own
religious perspectives. This goal is entirely realistic. A program of purely
denominational instruction designed primarily to indoctrinate students to the
correctness of certain religious precepts would not achieve the objectives of
the ERC Program; however, a balanced curriculum, taught from a religious
perspective but with all viewpoints presented and respected could, in our view,
serve as an equivalent to the ERC Program. To the extent Loyola’s proposal
meets these criteria, it should not have been rejected out of hand.
[149]
And yet it was, because the Minister premised
her denial on the flawed determination that only a cultural and
non-denominational approach could serve as equivalent. This effectively
negated the flexible approach contemplated by the legislative and regulatory
scheme, and set a standard that would tolerate no more than a minimal deviation
from the generic ERC Program. The application judge summarized the impossible
position in which Loyola was placed:
[translation] Loyola is placed in an
untenable position because of the Minister’s decision. Either Loyola dispenses
the ERC course according to the Minister’s program and . . . violates
the supreme principles governing its freedom of religion, or it teaches the
subject with its Catholic program and violates the Act. [para. 271]
[150]
There is unquestionably a role for the Minister
to examine proposed programs on a case-by-case basis to ensure that they
adequately further the objectives and competencies of the ERC Program. In
certain cases, the result may be that the religious freedoms of private schools
are subject to justifiable limitations. Here, however, the Minister adopted a
definition of equivalency that essentially read this meaningful individualized
approach out of the legislative and regulatory scheme. By using as her
starting point the premise that only a secular approach to teaching the ERC
Program can suffice as equivalent, the protection contemplated by the s. 22
exemption provision was rendered illusory.
[151]
The legislative and regulatory scheme is
designed to be flexible and to permit private schools to deviate from the
generic ERC Program, so long as its objectives are met. The Minister’s
definition of equivalency casts this intended flexibility in the narrowest of
terms, and limits deviation to a degree beyond that which is necessary to
ensure the objectives of the ERC Program are met. This led to a substantial
infringement on the religious freedom of Loyola. In short, the Minister’s
decision was not minimally impairing. Therefore, it cannot be justified
under s. 1 of the Charter as a reasonable limit on Loyola’s s. 2 (a)
right to religious freedom.
F.
The Appropriate Scope of an Equivalent Program
[152]
The content and approach of Loyola’s proposed
program were not precisely framed in its initial proposal to the Minister.
Rather, they have been fleshed out over the course of this litigation. Given
our conclusion that the Minister’s construction of the exemption provision was
too narrow, we think it would be useful to outline the appropriate limits that
could be placed on an equivalent program. We do so not to obviate the
Minister’s appropriate use of case-by-case discretion in future cases, but to
guide the exercise of that discretion, while also providing finality to resolve
the protracted dispute between the parties in this case.
[153]
Determining whether a proposed program is
sufficiently equivalent to the generic ERC Program is a fact-based exercise,
and the Minister may, in the exercise of his or her discretion, make this
determination on a case-by-case basis. However, this case illustrates the
difficulty that making such a determination can pose. In the course of this
protracted litigation between Loyola and the government of Quebec, this Court
and courts below have received extensive testimony, documentary evidence and
oral submissions regarding Loyola’s proposal and the objectives of the ERC
Program. It is therefore appropriate to delineate rough boundaries within
which Loyola’s proposed alternative program must be delivered, in order to
strike the balance required between Loyola’s right to religious freedom under
s. 2 (a) of the Charter , and the need to meet the objectives of
the ERC Program. These boundaries should also serve as general principles to
guide future exercises of ministerial discretion, while recognizing that each
request for an exemption must be considered individually and with regard to all
of the particular circumstances.
[154]
In assuring compliance with the Charter,
an exemption must take into account the practical classroom realities posed by
the ERC Program’s topics. While Loyola’s complaint rests on its Catholic
identity, this identity has implications throughout the ERC Program. In our
view, it would be insufficient to merely grant an exemption for Loyola to teach
Catholicism from a Catholic perspective, while requiring an unmodified
curriculum and a neutral posture in all other aspects of the program. Binding
Loyola to a secular perspective at all times, other than during their
discussion of the Catholic religion, offers scant protection to Loyola’s
freedom of religion, and would be unworkable in practice.
[155]
Loyola proposes to teach the ethics competency
in a way that recognizes its Catholic perspective. It does not want its
teachers to be forced to remain neutral — or more realistically, mum — in the
face of ethical positions that do not accord with the Catholic faith. Rather,
Loyola proposes to have its teachers facilitate respectful and open-minded
debate, where all positions are presented, but where students evaluate ethics
and morals not in a vacuum but with knowledge of the Catholic perspective.
[156]
Requiring Loyola’s teachers to maintain a
neutral posture on ethical questions poses serious practical difficulties and
represents a significant infringement on how Loyola transmits an understanding
of the Catholic faith. It is inevitable that ethical standards that do not
comport with Catholic beliefs will be raised for discussion. Faced with a
position that is fundamentally at odds with the Catholic faith, Loyola’s
teachers would be coerced into adopting a false and facile posture of
neutrality. The net effect would be to render them mute during large portions
of the ethics discussion — a discussion that is, as the ERC Program
presupposes, crucial to developing a civilized and tolerant society.
[157]
As an example, one can anticipate that students
may wish to debate the appropriate expressions of intimacy between young
people, and discuss the topic of premarital sex. It is inconceivable that a
Catholic teacher could sincerely express a neutral viewpoint on this subject —
nor, in our view, should he or she be required to do so. The practical effect
would be the teacher’s coerced silence. This silence would, however, extend
only until the teacher turned to the discussion of Catholicism under the world
religions competency, at which point he or she would be free to engage in an
uninhibited dialogue — respectful and open to disagreement, but able to explain
why such a life choice does not comport with Catholic morality. This delayed
ability to express honest beliefs and actively moderate the classroom
discussion does not illustrate a tolerable compromise between the state’s
interest in furthering the objectives of the ERC Program and Loyola’s freedom
of religion. Rather, it illustrates the unsuitability and unworkability of
such a framework.
[158]
As we understand Loyola’s proposal, on a topic
such as premarital sex, Loyola wishes to present the moral and ethical
implications from a Catholic point of view. Presumably, the teacher would
present a modern Catholic understanding of the subject, informed by its
biblical underpinnings and supplemented by more recent theological and
philosophical consideration. Loyola has also committed, however, to ensure
that on every major ethical topic, students “understand not only the position
of the Roman Catholic Church, but also those of all major thinkers and
viewpoints” (A.F., at para. 13). In the context of this topic, Loyola’s
teachers would discuss with students the fact that some other religions — in
fact, some strands of Christianity — do not strictly proscribe sexual intimacy
between unmarried individuals. They would discuss with the students that,
outside of the religious context, the dominant secular viewpoint in Western
society tolerates, and even encourages sex outside of marriage. Students would
be encouraged to think critically about the different views. Teachers would
clearly identify the Catholic position, and the justifications for it, while
respectfully considering the other points of view. If asked a question
challenging the Catholic point of view, teachers would be free to answer and
defend that position — again, in the context of an open-minded and respectful
conversation, but one that is grounded in the inescapable reality that Loyola
is a Catholic high school whose students and parents have voluntarily selected
an education infused with Catholic beliefs and values.
[159]
Rejecting this framework and imposing a
neutrality requirement on Loyola’s teachers would not only prove undesirable
from the perspective of religious freedom, it would also diminish the
attainment of the ERC Program’s own objectives. The dialogue competency
requires teachers to honestly and actively participate in the classroom
conversation. For Catholic teachers at a Catholic school, the forced neutral
posture poses an unenviable choice: they can express a neutral (and therefore
insincere) viewpoint on an ethical question that touches on a precept of the
Catholic faith, or they can simply remain silent. Neither insincerity nor
silence is conducive to the ERC Program’s objectives of promoting individual
deliberation and the exchange of ideas.
[160]
There are subtle but important distinctions to
make between the respectful treatment of differing viewpoints that Loyola
proposes, and the strict neutrality required under the generic ERC Program,
unalleviated by a s. 22 exemption. The ERC Program compels teachers to adopt a
professional posture of strict neutrality, such that all points of view and all
religious perspectives are presented as equally valid. The Minister’s denial
appears to be rooted in the assumption that this posture is vital to attaining
the objectives of the ERC Program. If a religious perspective is offered, then
all other viewpoints that do not conform to it will necessarily be derogated
and disrespected. This position presents a false dichotomy. Loyola has
strongly and repeatedly expressed that its proposed alternative program would
treat other religious viewpoints with respect — going to the extent of inviting
religious leaders from other faiths into the classroom to ensure students have
a rich and full understanding of differing perspectives. However, requiring a
religious school to present the viewpoints of other religions as equally legitimate
and equally credible is incompatible with religious freedom. Indeed,
presenting fundamentally incompatible religious doctrines as equally legitimate
and equally credible could imply that they are both equally false. Surely this
cannot be a perspective that a religious school can be compelled to adopt.
[161]
Additionally, this dichotomy does not accord
with principles of interfaith cooperation and collaboration, which brings
together people with deeply held commitments to their own faiths (and who therefore,
by implication, have rejected other religious doctrines as “equally legitimate”
or “equally credible”) but who are nonetheless able to foster deep ties based
on sincere mutual respect. As Loyola submitted in its letter to the Minister,
[translation] “our ethical ideal
is not simply to ‘tolerate’ others but indeed to ‘love’ others, as our
Christian faith teaches us” (application judge’s reasons, at para. 38).
[162]
With the foregoing in mind, we offer the
following guidelines to delineate the boundaries of a s. 22 exemption in this
case, and to inform the Minister’s evaluation of future exemption applications:
•
Loyola’s teachers must be permitted to describe
and explain Catholic doctrine and ethical beliefs from the Catholic
perspective, and cannot be required to adopt a neutral position.
•
Loyola’s teachers must describe and explain the
ethical beliefs and doctrines of other religions in an objective and respectful
way.
•
Loyola’s teachers must maintain a respectful
tone of debate — both by conveying their own contributions in a respectful way,
and by ensuring the classroom dialogue proceeds in accordance with respect,
tolerance and understanding for those with different beliefs and practices.
•
Where the context of the classroom discussion
requires it, Loyola’s teachers may identify what Catholic beliefs are, why
Catholics follow those beliefs, and the ways in which another specific ethical
or doctrinal proposition does not accord with those beliefs, be it in the
context of a particular different religion or an ethical position considered in
the abstract.
•
Loyola’s teachers cannot be expected to teach
ethics or religious doctrines that are contrary to the Catholic faith in a way
that portrays them as equally credible or worthy of belief. Respect,
tolerance, and understanding are all properly required, and the highlighting of
differences must not give rise to denigration or derision. However, ensuring
that all viewpoints are regarded as equally credible or worthy of belief would
require a degree of disconnect from, and suppression of, Loyola’s own religious
perspective that is incompatible with freedom of religion.
G.
Remedy
[163]
We have concluded that the Minister’s decision
infringes Loyola’s right to religious freedom under s. 2 (a) of the Charter ,
in a manner that cannot be justified under s. 1 . The Court is empowered by s.
24(1) of the Charter to craft an appropriate remedy in light of all of
the circumstances.
[164]
In Canada (Attorney General) v. PHS Community
Services Society, 2011 SCC 44, [2011]
3 S.C.R. 134, this Court was presented with a similar situation —
an exercise of a minister’s statutory discretion in declining to grant an
exemption, resulting in a violation of the Charter rights of the
claimants. In that case, the Court declined to send the matter back for
reconsideration by the Minister, but rather granted an order in the nature of
mandamus, compelling the Minister to grant the exemption: PHS, at para.
150.
[165]
We find it neither necessary nor just to send
this matter back to the Minister for reconsideration, further delaying the
relief Loyola has sought for nearly seven years. Based on the application
judge’s findings of fact, and considering the record and the submissions of the
parties, we conclude that the only constitutional response to Loyola’s
application for an exemption would be to grant it. Accordingly, we would order
the Minister to grant an exemption to Loyola, as contemplated under s. 22 of
the regulation at issue, to offer an equivalent course to the ERC Program in
line with Loyola’s proposal and the guidelines we have outlined.
Appeal
allowed.
Solicitors for the
appellants: Borden Ladner Gervais, Montréal.
Solicitors for the
respondent: Bernard, Roy & Associés, Montréal.
Solicitors for the
intervener the Canadian Council of Christian Charities: Barry W. Bussey,
Elmira, Ontario; Canadian Council of Christian Charities, Elmira, Ontario.
Solicitors for the
intervener the Evangelical Fellowship of Canada: Vincent Dagenais Gibson,
Ottawa; Evangelical Fellowship of Canada, Richmond Hill, Ontario.
Solicitors for the
intervener the Christian Legal Fellowship: Robert E. Reynolds, Montréal;
Christian Legal Fellowship, Burlington, Ontario.
Solicitors for the
intervener the World Sikh Organization of Canada: Shergill & Company,
Surrey.
Solicitors for the
intervener the Association of Christian Educators and Schools Canada: Kuhn,
Abbotsford.
Solicitors for the
intervener the Canadian Civil Liberties Association: Davies Ward Phillips &
Vineberg, Montréal.
Solicitors for the
interveners the Catholic Civil Rights League, Association des parents
catholiques du Québec, the Faith and Freedom Alliance and Association de la
communauté copte orthodoxe du grand Montréal: Bennett Jones, Toronto.
Solicitors for the
intervener the Faith, Fealty and Creed Society: Benefic, Vancouver.
Solicitors for the
intervener the Home School Legal Defence Association of Canada: Côté Avocats
Inc., Sainte-Julie, Quebec; Home School Legal Defence Association of Canada,
London, Ontario.
Solicitors for the
interveners the Seventh-day Adventist Church in Canada and the Seventh-day
Adventist Church — Quebec Conference: Miller Thomson, Calgary.
Solicitors for the interveners Corporation archiépiscopale
catholique romaine de Montréal and Archevêque catholique romain de Montréal: Famularo
Fernandes Levinson Inc., Montréal.