On March 19, 2015, the Supreme Court of Canada (“SCC”) released its decision in Loyola High School v. Québec (Attorney General), 2015 SCC 12. The SCC ruled that theQuébec Minister of Education’s decision to disallow Loyola’s proposal to teach an Ethics, Religion and Culture course from a Catholic perspective limited Loyola’s freedom of religion more than was necessary given the statutory objectives. The SCC allowed the appeal, set aside the Minister’s decision, and returned the matter to the Minister for reconsideration.

Facts

The province of Québec’s Ethics, Religion and Culture course (“ERC”) curriculum was implemented a number of years ago as a part of a secular system of education, departing from Québec’s previous confessional education system. The ERC became a mandatory program for all schools, public and private, at the start of the 2008-2009 school years. The orientation of the ERC is strictly secular and cultural and it expects teachers to take a stance of objectivity and impartiality. In essence, the ERC’s goal is to teach world views from a neutral standpoint.

This case concerned an application by Loyola High School (“Loyola”) for an exemption from the requirement to teach the ERC as per the Minister’s direction. Instead, Loyola, being a private Catholic institution, applied to teach ERC in an equivalent manner: world views from a Catholic perspective. A private school such as Loyola is entitled to provide an alternative but “equivalent” program if the Minister approves its content.

The Minister denied Loyola’s request on the basis that teaching the ERC from a Catholic perspective was not in accordance with the intention of the ERC, therefore Loyola’s proposed program was not “equivalent”.

Loyola brought an application for judicial review of the Minister’s decision. The Superior Court held that the Minster’s refusal of an exemption infringed Loyola’s right to religious freedom and quashed the Minister’s decision and ordered an exemption. On appeal, the Québec Court of Appeal held that Minister’s decision was a reasonable one and that Loyola’s religious freedom was not breached.

The SCC held that the Minister’s decision did in fact limit Loyola’s freedom of religion more than was necessary given the statutory objectives.

Justice Abella’s proportionality analysis

The SCC previously decided in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395  that when faced with administrative decisions involving Charter rights, the discretionary decision maker is required to proportionately balance the relevant Charterprotections to ensure that they are limited no more than necessary given the applicable statutory objectives.

In this case, and as per Doré, the reasonableness of the Minister’s decision 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. The question the SCC had to answer was: “how to balance robust protection for the values underlying religious freedom with the values of a secular state” (at para. 43).

Justice Abella noted the manner in which the State was interfering with Loyola’s religious freedom:

“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.”(at para. 62).

The Minister’s decision to deny the exemption was a measure that undermined the character of Loyola as a religious institution and infringed its religious freedom. Furthermore, Abella J. while applying the Doré style reasoning could not identify a sufficient benefit to the furtherance of the State’s objectives in requiring Loyola’s teachers to teach from a neutral perspective, thus the proportionate balance was not met.

The Judges’ concurrent decision

Three judges (McLachlin C.J., Moldaver J. and Rothstein J.) wrote a separate opinion, that concurred only partially in the result. The concurrence decided that the collective aspect of freedom of religion is protected by the Charter and that an organization such as Loyola can benefit from protection for freedom of religion where the organization is (1) constituted primarily for religious purposes, and (2) its operation is in keeping with these purposes. The concurring decision acknowledges that claims brought by organizations will differ from those brought by individuals, and provided guidance on how to consider evidence in these types of cases. 

Conclusion

The SCC was divided by a 4-3 margin on how to achieve the right balance between religious freedom and the standards of a secular province. Justice Abella decided to deal with the case by  relying on Doré, while the concurring judges went directly to a freedom of religion analysis.

Regardless of the differences in the decisions, all judges asserted that a religious community such as Loyola has a right as part of its freedom of religion to continue educating world views to students through its own curriculum, one inspired by its Catholic values and that at the same time a secular state must respect religious communities.

Notably however, it remains unclear if the Doré proportionality analysis when administrative decisions are attacked on constitutional grounds will remain. The concurring judges applied a s. 1 test rather than the Doré framework for reviewing discretionary administrative decisions that engage the protections of the Charter. It may be that future cases will put the issue to rest, as the distinction may be more semantic than substantive.