JURIST Guest Columnist Diana Ginn of Schulich School of Law, Dalhousie University, discusses the debate surrounding the freedom of religion held by private and public schools in Canada with regards to curriculum…

In Loyola High School and John Zucci v. Attorney General of Quebec the Supreme Court of Canada addressed the issue of religious freedom in the context of teaching religion and ethics in a private Catholic school. In 2008 Quebec introduced an Ethics and Religious Culture (ERC) program, which it made mandatory in public schools. The program is taught from a secular perspective and is intended to “develop three competencies among students: the ability to understand ‘religious culture’…[t]he ability to reflect on ethical questions; and the ability to engage in dialogue.” The Minister of Education has the discretionary power to authorize equivalent courses in lieu of mandatory ones in private schools. Loyola High School applied for permission to replace the ERC curriculum with a course taught primarily from a Catholic perspective. The Minister refused to grant the exemption, and Loyola sought judicial review on the basis that the Minister’s decision was an unreasonable restriction on freedom of religion. Loyola’s position was clarified as the litigation proceeded: by the time the matter reached the Supreme Court, the school had committed to teach the doctrine of other world religions from a neutral stance but claimed the right to teach about the ethics of other religions, as well as about Catholicism, from a Catholic perspective. The Minister maintained that all aspects of the curriculum must be taught from a secular viewpoint. The Supreme Court found that the school’s religious freedom had been unreasonably infringed, with the majority and minority disagreeing over whether all or only part of the Minister’s decision failed the test of reasonableness.

The decision in Loyola provides a companion piece to S.L v. Commission scolaire des Chenes, where the court held that the mandatory nature of the ERC program did not infringe the religious freedom of public school parents who objected to the curriculum. Rather than concluding that a refusal to allow exemptions from the ERC course limited freedom of religion, and then inquiring whether this limitation was justifiable, the court in S.L. held that freedom of religion had not been limited in the first place. In reaching its conclusion in S.L., the Court placed significant weight on the state’s duty of neutrality and commitment to multiculturalism.

Previously in these pages I argued that using principles of neutrality and multiculturalism “as the lens through which to determine whether freedom of religion has been infringed, rather than as a strong argument at the justification stage” risks diluting the constitutional protection of freedom of religion. In Loyola the court distinguished S.L. on the grounds that Loyola is a private Catholic school “created to support the collective practice of Catholicism and the transmission of the Catholic faith”. Certainly this distinction is relevant, but the import of Loyola goes beyond this, remedying to some extent S.L’s narrow approach to freedom of religion. Loyola marks a welcome return to earlier cases that defined religious freedom more broadly and is to be celebrated for its understanding of the secular multicultural state as including “respect for religious differences.”

The Canadian Charter of Rights and Freedoms protects freedom of religion and conscience. However, even constitutionally-entrenched rights and freedoms are not absolute. If it is shown that legislation restricts a Charter right, section one of the Charter allows the government to try to persuade the court that the restriction is reasonable and “can be demonstrably justified in a free and democratic society.” Where the Charter violation arises not from legislation but from an administrative decision (as in this case, with the Minister’s refusal to grant an exemption), the test is whether the decision reasonably balances protection of Charter rights with the objectives of the legislation under which the decision-maker is acting. Thus,

[t]he 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’s goals of promoting tolerance and respect for difference, and the religious freedom of the Loyola community who seek to offer and wish to receive a Catholic education.

The court in Loyola recognized that 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 difference” and that religious freedom does not automatically “trump core national values” such as “equality, human rights and democracy.” However, the court also recognized that the Minister’s statutory power to authorize alternative equivalent programs in private schools would be an empty promise of flexibility if the alternative program “had to be identical to the mandatory program in every way.” The Minister’s position that any departure from “strict neutrality” would fail to meet the government’s goals (namely, to promote respect for others and diversity) was found to be unreasonable by the Supreme Court. Specifically, four of the seven justices who decided the case held that prohibiting Loyola from teaching about Catholicism from a Catholic viewpoint “had a serious impact on religious freedom” and did not fairly balance that freedom with the statutory scheme under which the Minister was acting. They accepted, however, that it was reasonable for the Minister to require Loyola to teach “the ethics of other religions in a neutral, historical and phenomenological way.” The majority of the court set aside the Minister’s decision and directed her to reconsider Loyola’s application for an exemption.

The remaining three justices would have gone further. Characterizing Loyola’s proposed approach as encompassing both a focus on Catholic doctrine and teachings and “a full and rich exploration of non-Christian religious beliefs, and ethical perspectives that do not mirror Catholic moral teachings”, these justices held that the Minister of Education had erred in taking the “flawed” position that “only a cultural and non-denominational approach could serve as an equivalent” to the ERC program. In their view, religious freedom would be insufficiently protected by “merely grant[ing] 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.” Treating other religious perspectives with respect—something Loyola had committed to do in its proposed program—did not require that these other viewpoints be presented as “equally legitimate and equally credible.” They found that such a requirement would be “incompatible with religious freedom.” Rather than remitting the matter to the Minister, the three justices writing the minority opinion would have ordered that Loyola be granted an exemption from the ERC program.

Given Loyola’s commitment to teach about the beliefs of other religions from a neutral perspective, the court was divided only on the issue of whether the same approach was required for teaching about the ethical standpoint of other faiths. The majority held that requiring the school to teach the ethics of other religions “as objectively as possible does not seriously harm the values underlying religious freedom”. The minority, however, was of the view that “[b]inding Loyola to a secular perspective at all times, other than during their discussion of the Catholic religion, offers scant protection for Loyola’s freedom of religion, and would be unworkable in practice.”

I prefer the minority’s reasoning on this as it would be stifling and perhaps impossible for a school committed to teaching Catholic doctrine to present, for instance, the pro-choice arguments on abortion as having the same legitimacy as the Church’s stance on the issue. However, it is possible that the majority and minority decisions are not poles apart, since the majority’s phrase “as objectively as possible” does seem to provide some acknowledgement of the difficulty of attaining complete neutrality.

Taken as a whole, there is much to celebrate in the Supreme Court’s handling of the issues in Loyola. Perhaps the most significant moment of the decision comes when Justice Abella, writing for the majority, states: “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”. This is an extraordinarily important point, distinguishing as it does between secularism and secularization, that is, distinguishing between the state avoiding favoritism among religions or as between religion and non-religion, and the state seeking to erase religion or at least profoundly privatize and marginalize it. The former stance is in accord with the Canadian constitution’s protection for religious freedom—the latter is not.

Diana Ginn is a Professor at Dalhousie University’s Schulich School of Law, where she focuses her research on issues involving law and religion, administrative law and property law. Prior to her academic career, Ginn conducted legal research for the Law Reform Commission of Nova Scotia and served as legislative counsel for the Government of the Northwest Territories.

Suggested Citation: Diana Ginn, Canadian Freedom of Religion Case , JURIST – Academic Commentary, June 15, 2015, http://jurist.org/academic/2015/diana-ginn-canadian-freedom-religion.php.