Many have been anxiously waiting for the Supreme Court of Canada’s decision in Loyola High School v. Quebec (Attorney General)[1] regarding the requirement that a privately funded Quebec Catholic boy’s secondary school, Loyola High School (“Loyola”), implement strictly, without amendment the Quebec Ministry of Education’s Ethics and Religious Culture course, referred to as the ERC program.

The ERC program requires world religions to be taught from a strictly secular, objective, cultural perspective.  The program also requires that the ethics of different world religions be taught from a neutral perspective. There are two objectives of the ERC program; the first is to teach that all people possess equal value and dignity; the second is to foster human rights and democracy as shared values.  To fulfill the objectives, the course requires students to understand religious culture, reflect on ethical issues, and engage in dialogue with respect to ethical issues.  This program is part of the compulsory curriculum required by the Ministry of Education for both publicly funded and private schools.  The ERC program is taught in four of the five years of secondary school.  However, the Ministry also permits privately funded schools to teach an alternative program if the Minister deems the program to be “equivalent” to the ERC.

Loyola put forward requests to the Minister to have its alternative program approved.  The Minister refused approval of the alternative program on the basis that it was not an equivalent alternative program but rather a faith based program that did not meet the objectives of the ERC program. 

The Minister’s decision was judicially reviewed on the grounds that the Minister required the ERC program to be taught on the basis of normative pluralism, which would be contrary to Loyola’s Catholic character and, therefore, a breach of its freedom of religion pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”).  The judge on judicial review agreed with Loyola, but the Quebec Court of Appeal did not.

Before the Supreme Court of Canada, Loyola changed its argument slightly and asserted that it did not object to teaching about other world religions objectively.  However, Loyola wanted to be able to teach the ethics of other religious traditions from the perspective of the Catholic religion, rather than from a cultural and neutral perspective and it continued to assert the right to teach portions of the ERC course regarding Catholic doctrine and ethics from a Catholic perspective.  The Minister maintained its position that no part of the course should be taught from a Catholic perspective.

The majority of the Supreme Court of Canada held that is was not necessary to determine whether or not Loyola as a corporate institution could have religious freedom in its own right under section 2(b) of the Charter.Instead, the Court considered that the Minister was bound to exercise her discretion in light of the Charter-protected religious freedom of the members of the Loyola community who seek to offer or who wish to receive a Catholic education.

The Court posed the question to be whether the Minister’s decision regarding Loyola’s alternative program interferes with Loyola’s Charter rights more than is necessary to implement the statutory objectives of the ERC program.  This question is posed 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.”[2]  The Court held that, if the alternative program put forward by Loyola substantially realized the ERC objectives, it should be considered equivalent.

The difference between Loyola’s proposed program and the ERC program was that Loyola intended to “focus on Catholic precepts and ethics and discuss the other belief systems from a Catholic perspective.”[3]  The Minister, on the other hand, not only wanted other religions to be taught from an objective perspective, but also wanted Loyola to teach about Catholicism and its relationship with other religions in an objective, neutral, culturally based manner.  The Supreme Court held that the Minister’s approach did not minimally impair religious freedom, stating that “[t]o 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.”[4]

On the other hand, the majority of the Court held 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” and that “teaching other ethical positions in their own right, does not mean stifling debate or denying Loyola’s Catholic identity.”[5]

In the end, the majority of the Court held that the Minister’s decision must properly reflect a proportionate balancing of the statutory objectives with the constitutional values underlying freedom of religion:

"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."[6]

The Court remitted the matter back to the Minister for reconsideration.

This decision of the Court both supports Catholic education and confirms that Charter rights will be protected in a secular, plural, and multicultural society.