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Loyola High School v. Québec (Attorney General), 2015 SCC 12 (Judicial review — Standard of Review — Ministerial discretion — Charter of Rights — Freedom of religion — Schools — Mandatory ethics and religious culture program)

On appeal from the judgment of the Québec Court of Appeal (2012 QCCA 2139), dated December 4, 2012,setting aside a judgment of setting aside a decision of Dugré J. (2010 QCCS 2631).

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 Québec, 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 Québec 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 (7:0): The Minister’s decision requiring that allaspects 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 relevantCharter 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 Québec 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 theCharter 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.

Reasons for judgment by Abella J., concurring reasons byMcLachlin C.J. and Moldaver J.

Neutral citation: 2015 SCC 12. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do