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[Photo of religious educators in pre-Quiet Revolution Quebec]

Yet again, the Supreme Court of Canada wrestled with the thorny issue caused by the intersection of religious freedom and the secular state. In Loyola High School v. Quebec (Attorney General), 2015 SCC 12, the Court conceded some measure of victory to both sides of the equation. In a 4:3 majority decision, Justice Abella (LeBel, Cromwell and Karakatsanis JJ concurring) held that a private denominational school could be required to teach a state prescribed curriculum on world religions, religious cultures and their respective religious ethics from a neutral and secular perspective with the exception of the school’s own denomination. For that particular religion (here, Catholicism), the school was entitled to an exemption to teach its students from a Catholic perspective, an exemption that the provincial Minister had refused to provide.

Justice Abella noted that she did not have to decide whether a not-for-profit entity like a society incorporated to provide a vehicle for a Catholic high school education could enjoy freedom of religion under s. 2(a) of the Charter because, in assessing whether to grant an exemption to the otherwise state-required curriculam, “the Minister [was] bound in any event to exercise her discretion in a way that respect[ed] the values underlying the grant of her decision-making authority, including the Charter-protected religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education” [para. 34]. Justice Abella described the issue before them as follows [para. 43]:

[43] The context before us — state regulation of religious schools — poses the question of how to balance robust protection for the values underlying religious freedom with the values of a secular state. Part of secularism, however, is respect for religious differences. 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 those of another: Richard Moon, “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497, at pp. 498-99. 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.

Justice Abella reviewed the seminal decision of former Chief Justice Dickson in R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 where that learned jurist discussed the ambit and nature of freedom of religion [see paras. 94-96 Big M Drug Mart]. She noted that Chief Justice Dickson had underscored the individual and collective aspects of freedom of religion. She stated at para. 60 that “[r]eligious 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.” She quoted Dwight Newman from Community and Collective Rights: A Theoretical Framework for Rights held by Groups (2011), at p. 78, where he noted that to fail to recognize this dimension of religious belief would be to “effectively denigrate those religions in which more emphasis is placed on communal worship or other communal religious activities.” She noted that “[t]hese collective aspects of religious freedom — in this case, the collective manifestation and transmission of Catholic beliefs through a private denominational school — [were] a crucial part of Loyola’s claim.” [para. 61] Loyola High School, Justice Abella observed, is a private denominational institution created for the specific purpose of the collective practice of Catholicism and the transmission of that faith. As Justice Abella stated at para. 61, “[t]he question is not only how Loyola is required to teach about other religions, but also how it is asked to teach about the very faith that animates its character and the comparative relationship between Catholicism and other faiths.”

Justice Abella noted that the Minister’s decision not to provide an exemption to Loyola to be able to teach about the Catholic religion from a Catholic perspective was a serious breach of freedom of religion. But when it came to teaching about ethics of religions, she drew a line [para. 71]:

Loyola, as previously noted, conceded before this Court that it was prepared to teach the first competency — world religions other than Catholicism — from a neutral perspective. It sought, however, to be exempt from teaching the ethics of other religions from a neutral perspective, and proposed instead to do so from a Catholic perspective. Unlike my colleagues in their concurring opinion, however, I agree with the Court of Appeal 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 implicated by the decision. Justice Deschamps’s admonition that exposing children to a variety of religious facts does not, in itself, infringe on their parents’ religious freedom remains compelling in a denominational school: S.L., at para. 40. I agree with her that 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.

Justice Abella concluded at para. 80 as follows:

This is not to suggest, however, that in a religious school, the Minister is required to allow the ERC Program — a program that is framed as a tool to teach students about different world religions and ethical beliefs — to be replaced by a program that focuses on that religion’s doctrine and morality. 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.

The Chief Justice and Justice Moldaver (Justice Rothstein concurring) also allowed the appeal but would have gone further than Justice Abella. They would have required an exemption that allowed the teachers of Loyola to teach ethics as well from a more Catholic perspective. Specifically, at para. 162, the learned justices stated:

[162] With the foregoing in mind, we offer the following guidelines to delineate the boundaries of a s. 22 exemption in this case, and to inform the Minister’s evaluation of future exemption applications:

• Loyola’s teachers must be permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective, and cannot be required to adopt a neutral position.
• 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 — both by conveying their own contributions in a respectful way, and by ensuring the classroom dialogue proceeds in accordance with respect, tolerance and understanding for those with different beliefs and practices.
• Where the context of the classroom discussion requires it, Loyola’s teachers may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which another specific ethical or doctrinal proposition does not accord with those beliefs, be it in the context of a particular different religion or an ethical position considered in the abstract.
• Loyola’s teachers cannot be expected to teach ethics or religious doctrines that are contrary to the Catholic faith in a way that portrays them as equally credible or worthy of belief. Respect, tolerance, and understanding are all properly required, and the highlighting of differences must not give rise to denigration or derision. However, ensuring that all viewpoints are regarded as equally credible or worthy of belief would require a degree of disconnect from, and suppression of, Loyola’s own religious perspective that is incompatible with freedom of religion.

Justice Abella and the majority of the Court have sought a balance between the two competing values – respect for freedom of religion in an educational institution and interest of the state in ensuring that its future citizens are broadly educated. Just how the teachers of Loyola will manage to achieve that balance will be interesting to observe. I can only imagine that a Catholic teacher in a Catholic school teaching religious ethics as may arise in various faiths, including the Catholic faith, will have a difficult time teaching such ethics in a neutral, objective manner. This is probably one of the motivating factors behind the minority’s decision. But, as we have seen in the past and will see in the future, freedom of religion often bumps up against other values, including other constitutional values and principles. It is not an absolute freedom. Justice Abella quoted Chief Justice Dickson in Big M Drug Mart where he described freedom as follows [para. 95]:

Freedom can primarily be characterized by the absence of coercion or constraint. . . . Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
[Emphasis is that of Justice Abella]

I await with interest to see how the Court will mediate the collision between freedom of religion, on one hand, and the right to equality and the right not to be discriminated against on the other when the Trinity Western University cases wend their way to the Supreme Court in a year or two. I predict that the collision will result in a divided Court, and yet another attempt to reconcile the competing constitutional interests. Maybe this time, unlike the 2001 decision in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, the positive right to equality will trump the right to an absence of coercion in exercising one’ religion.

I remain,

Constitutionally yours,

Arthur Grant