In Loyola High School v. Quebec, a majority of four justices at the SCC (with three only partially concurring) crafted a nuanced and equivocal judgment that, on the one hand, lauds an educational program intended to foster respect for other belief systems, while at the same time ruling that the program strays into Charter violation territory.
The appeal stems from a mandatory ethics and religious culture (ERC) program introduced in Quebec in 2008, which requires high schools in the province to teach world religions from a neutral and objective perspective.
Loyola High School, a private Jesuit institution founded in the 1840s, sought an exemption under regulations that allow the school to propose an alternative, equivalent program.
Loyola’s alternative would respectfully teach other world religions, but from a Catholic perspective. The application was denied by Quebec’s education minister, given that any education based on Catholic beliefs could not be objective, and therefore could not be equivalent.
Loyola applied for judicial review, winning initially at the Superior Court level, but losing on appeal. Today’s decision by the Supreme Court overturns the lower court’s assessment and establishes for the first time that religious organizations have rights under the Charter.
Written by Justice Rosalie Abella, the decision states that, while it is not a Charter infringement to require schools to teach other religions in a neutral manner, it is an infringement to require them to abandon their own perspective in teaching their own faith.
“In a multicultural society,” the decision states, “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 . . .”
“. . . . [but] 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.”
Although a vocal minority, including Chief Justice Beverley McLachlin, sought to grant Loyola an exemption outright, the majority decided to send the matter back to Quebec’s education minister, challenging the government to craft programs that hold true to its laudable objectives while protecting religious freedoms.
“Teaching the ethical frameworks of other religions in a neutral way may be a delicate exercise,” the decision states, “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.”
Mark Phillips, a litigator at Borden Ladner Gervais LLP who represented Loyola, says the ruling is a big win for religious schools across the country.
“It’s basically a unanimous decision where the court has said that religious organizations do have freedom of religion, which had been contested,” says Phillips. “The Supreme Court said that there was a violation, in that to oblige a Catholic school to disengage from its Catholic faith and its Catholic morals in the teaching of its own religion and its own ethical system is a violation and is not justified.”
The court’s appeal, Phillips explains, turns on the test established in Doré v. Barreau du Québec, which involves challenging the constitutionality of administrative decisions. The test requires any decision that limits Charter rights to be balanced against the value of the objectives being sought.
“So in a way it’s a simpler test,” says Phillips, “and the way the court has sided, in both sets of reasons, is that, yes, there was a violation and, no, it was not reasonable to do it because there is nothing in the ERC program and its objectives . . . that is in tension with what Loyola wants to do. So there’s actually nothing to be achieved by the state in restricting Loyala’s religious liberty in any way — therefore there’s no reasonable limitation.”
Moreover, Phillips says he doesn’t see a problem with the court’s decision to remit the matter to the education minister, or in the finding that the province’s requirement to objectively teach other religions remains justifiable.
“I think it’s a fairly fine nuance, and it’s not something that creates any trouble for Loyola per se,” he says. “You can’t teach Buddhism from a Catholic perspective. So the only way that Loyola would teach it or any other religious faiths other than its own would be to present the practices and doctrines of that religious group in a way that’s totally respectful.”