Loyola High School v. Quebec (Attorney General)

Loyola High School v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2015-03-19
Neutral citation
2015 SCC 12
Report
[2015] 1 SCR 613
Case number
35201
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Quebec
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 35201
Decision Content
SUPREME COURT OF CANADA
Citation: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613
Date: 20150319
Docket: 35201
Between:
Loyola High School and John Zucchi
Appellants
and
Attorney General of Quebec
Respondent
- and -
Canadian Council of Christian Charities, Evangelical Fellowship of Canada,
Christian Legal Fellowship, World Sikh Organization of Canada,
Association of Christian Educators and Schools Canada,
Canadian Civil Liberties Association, Catholic Civil Rights League,
Association des parents catholiques du Québec, Faith and Freedom Alliance,
Association de la communauté copte orthodoxe du grand Montréal,
Faith, Fealty and Creed Society, Home School Legal Defence Association of Canada, Seventh-day Adventist Church in Canada, Seventh-day Adventist Church — Quebec Conference, Corporation archiépiscopale catholique romaine de Montréal and
Archevêque catholique romain de Montréal
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 81)
Joint Reasons Concurring Partially in Result:
(paras. 82 to 165):
Abella J. (LeBel, Cromwell and Karakatsanis JJ. concurring)
McLachlin C.J. and Moldaver J. (Rothstein J. concurring)
Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613
Loyola High School and
John Zucchi Appellants
v.
Attorney General of Quebec Respondent
and
Canadian Council of Christian Charities,
Evangelical Fellowship of Canada,
Christian Legal Fellowship,
World Sikh Organization of Canada,
Association of Christian Educators and Schools Canada,
Canadian Civil Liberties Association,
Catholic Civil Rights League,
Association des parents catholiques du Québec,
Faith and Freedom Alliance,
Association de la communauté copte orthodoxe du grand Montréal,
Faith, Fealty and Creed Society,
Home School Legal Defence Association of Canada,
Seventh-day Adventist Church in Canada,
Seventh-day Adventist Church — Quebec Conference,
Corporation archiépiscopale catholique romaine de Montréal and
Archevêque catholique romain de Montréal Interveners
Indexed as: Loyola High School v. Quebec (Attorney General)
2015 SCC 12
File No.: 35201.
2014: March 24; 2015: March 19.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for quebec
Administrative law — Judicial review — Standard of Review — Ministerial discretion — Mandatory ethics and religious culture program — Private denominational school proposing alternative program — Request for exemption denied by Minister — Proper approach to judicial review of discretionary administrative decisions engaging Charter protections — Whether Minister’s decision proportionately balanced religious freedom with statutory objectives of mandatory program — Regulation respecting the application of the Act respecting private education, CQLR, c. E-9.1, r. 1, s. 22.
Constitutional law — Charter of Rights — Freedom of religion — Schools — Mandatory ethics and religious culture program — Private denominational school proposing alternative program — Request for exemption denied by Minister — Whether Minister’s insistence that proposed alternative program be entirely secular in its approach is reasonable given the statutory objectives of mandatory program and s. 2 (a) of the Canadian Charter of Rights and Freedoms .
Human rights — Freedom of religion — Schools — Mandatory ethics and religious culture program — Private denominational school proposing alternative program — Request for exemption denied by Minister — Whether Minister’s insistence that proposed alternative program be entirely secular in its approach is reasonable given the statutory objectives of mandatory program — Whether Minister’s decision limits freedom of religion under s. 3 of the Charter of human rights and freedoms, CQLR, c. C-12.
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 Quebec, 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 Quebec 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: The Minister’s decision requiring that all aspects 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 relevant Charter 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 Quebec 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 the Charter 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.
Cases Cited
By Abella J.
Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; considered: S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235; referred to: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650; Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; R. v. Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Eur. Court H. R., Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A; Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII; Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607; Adler v. Ontario, [1996] 3 S.C.R. 609; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698.
By McLachlin C.J. and Moldaver J.
Applied: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; referred to: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. CIP Inc., [1992] 1 S.C.R. 843; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Sindicatul “Păstorul Cel Bun” v. Romania (2014), 58 E.H.R.R. 10; Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII; Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012); National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235.
Statutes and Regulations Cited
Act respecting private education, CQLR, c. E-9.1, ss. 10, 25, 32, 111.
Act respecting the Ministère de l’Éducation, du Loisir et du Sport, CQLR, c. M-15, preamble, s. 2 .
Basic school regulation for preschool, elementary and secondary education, CQLR, c. I-13.3, r. 8, ss. 23, 23.1.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 24(1) .
Charter of human rights and freedoms, CQLR, c. C-12, ss. 3, 41.
Companies Act, CQLR, c. C-38, Part III.
Education Act, CQLR, c. I-13.3, ss. 447, 459, 461.
Interpretation Act, CQLR, c. I-16, s. 61(16).
Regulation respecting the application of the Act respecting private education, CQLR, c. E-9.1, r. 1, s. 22.
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 [the European Convention on Human Rights], art. 9.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, arts. 18(1), (4).
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 18.
Authors Cited
Barak, Aharon. Human Dignity: The Constitutional Value and the Constitutional Right, trans. by Daniel Kayros. Cambridge: Cambridge University Press, 2015.
Barak, Aharon. “Proportionality (2)”, in Michel Rosenfeld and András Sajó, eds., The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press, 2012, 738.
Berger, Benjamin L. “Religious Diversity, Education, and the ‘Crisis’ in State Neutrality” (2014), 29 C.J.L.S. 103.
Bernatchez, Stéphane. “Les rapports entre le droit administratif et les droits et libertés: la révision judiciaire ou le contrôle constitutionnel?” (2010), 55 McGill L.J. 641.
Boudreau, Spencer. “From Confessional to Cultural: Religious Education in the Schools of Québec” (2011), 38 Religion & Education 212.
Driedger, Elmer A. The Construction of Statutes. Toronto: Butterworths, 1974.
Gibson, Dale. The Law of the Charter: Equality Rights. Toronto: Carswell, 1990.
Grimm, Dieter. “Conflicts Between General Laws and Religious Norms” (2009), 30 Cardozo L. Rev. 2369.
Habermas, Jürgen. “Religion in the Public Sphere” (2006), 14 Eur. J. of Philos. 1.
Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press, 1995.
Macklem, Timothy. “Faith as a Secular Value” (2000), 45 McGill L.J. 1.
Moon, Richard. “Freedom of Religion Under the Charter of Rights : The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497.
Mullan, David. “Administrative Tribunals and Judicial Review of Charter Issues After Multani” (2006), 21 N.J.C.L. 127.
Muñiz-Fraticelli, Victor, and Lawrence David. “Whence a nexus with religion? Religious institutionalism in a Canadian context”, forthcoming.
Newman, Dwight. Community and Collective Rights: A Theoretical Framework for Rights held by Groups. Oxford: Hart, 2011.
Quebec. Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles. Building the Future: A Time for Reconciliation. Québec: The Commission, 2008 (Co-chairs: Gérard Bouchard and Charles Taylor).
Quebec. Ministère de l’Éducation, du Loisir et du Sport. Establishment of an ethics and religious culture program: Providing future direction for all Québec youth. Québec: The Ministère, 2005.
Sossin, Lorne, and Mark Friedman. “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391.
APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Wagner and Fournier JJ.A.), 2012 QCCA 2139, [2012] R.J.Q. 2112, 46 Admin. L.R. (5th) 79, [2012] AZ-50918665, [2012] Q.J. No. 15094 (QL), 2012 CarswellQue 12912 (WL Can.), setting aside a decision of Dugré J., 2010 QCCS 2631, [2010] R.J.Q. 1417, [2010] AZ-50647607, [2010] Q.J. No. 5789 (QL), 2010 CarswellQue 15823 (WL Can.). Appeal allowed.
Mark Phillips and Jacques S. Darche, for the appellants.
Benoit Boucher, Dominique Legault, Amélie Pelletier-Desrosiers and Caroline Renaud, for the respondent.
Barry W. Bussey and Derek Ross, for the intervener the Canadian Council of Christian Charities.
Albertos Polizogopoulos and Don Hutchinson, for the intervener the Evangelical Fellowship of Canada.
Robert E. Reynolds and Ruth Ross, for the intervener the Christian Legal Fellowship.
Palbinder K. Shergill, Q.C., and Balpreet Singh Boparai, for the intervener the World Sikh Organization of Canada.
Ian C. Moes and André Schutten, for the intervener the Association of Christian Educators and Schools Canada.
Jean-Philippe Groleau, Guy Du Pont and Léon H. Moubayed, for the intervener the Canadian Civil Liberties Association.
Ranjan K. Agarwal and Jack R. Maslen, for the interveners the Catholic Civil Rights League, Association des parents catholiques du Québec, the Faith and Freedom Alliance and Association de la communauté copte orthodoxe du grand Montréal.
Blake Bromley, for the intervener the Faith, Fealty and Creed Society.
Jean-Yves Côté and Paul D. Faris, for the intervener the Home School Legal Defence Association of Canada.
Gerald D. Chipeur, Q.C., and Grace Mackintosh, for the interveners the Seventh-day Adventist Church in Canada and the Seventh-day Adventist Church — Quebec Conference.
Milton James Fernandes and Sergio G. Famularo, for the interveners Corporation archiépiscopale catholique romaine de Montréal and Archevêque catholique romain de Montréal.
The judgment of LeBel, Abella, Cromwell and Karakatsanis JJ. was delivered by
[1] Abella J. — Since September 2008, as part of the mandatory core curriculum in schools across Quebec, 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. Like all courses in the mandatory curriculum, the Minister may grant private schools an exemption from the ERC Program if they offer an alternative program that the Minister deems to be equivalent.
[2] This appeal results from a judicial review of the Minister’s decision to deny an exemption sought by a private, Catholic school. The Minister based her decision on the fact that the school’s whole proposed program was to be taught from a Catholic perspective. It was not, as a result, “equivalent” to the ERC Program. The school submits that this is an interference with its religious freedom. The Minister submits that it is a necessary strategy to ensure that students are knowledgeable about and respectful of the differences of others. In a sense, they are both right . . .
[3] This Court’s decision in Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, sets out the applicable framework for assessing whether the Minister has exercised her statutory discretion in accordance with the relevant Canadian Charter of Rights and Freedoms protections. Doré succeeded a line of conflicting jurisprudence which veered between cases like Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, that applied s. 1 (and a traditional Oakes analysis) to discretionary administrative decisions, and those, like Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, which applied an administrative law approach. The result in Doré was to eschew a literal s. 1 approach in favour of a robust proportionality analysis consistent with administrative law principles.
[4] Under Doré, where a discretionary administrative decision engages the protections enumerated in the Charter — both the Charter’s guarantees and the foundational values they reflect — the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.
[5] In this case, the Minister’s decision reflected the fundamental assumption that any program taught from a religious perspective could not be an alternative to the ERC Program and that the religious school could not teach even its own religion from its own perspective.
[6] For the reasons that follow, in my view prescribing to Loyola how it is to explain Catholicism to its students seriously interferes with freedom of religion, while representing no significant benefit to the ERC Program’s objectives. In a context like Quebec’s, where private denominational schools are legal, this represents a disproportionate, and therefore unreasonable interference with the values underlying freedom of religion of those individuals who seek to offer and who wish to receive a Catholic education at Loyola. On the other hand, I see no significant impairment of freedom of religion in requiring Loyola to offer a course that explains the beliefs, ethics and practices of other religions in as objective and neutral a way as possible, rather than from the Catholic perspective.
Background
[7] Loyola High School is a private, English-speaking Catholic high school for boys. It is highly respected, and has been administered by the Jesuit Order since the school’s founding in the 1840s. Its mission, teaching, and characteristics are Jesuit. Most of the students at Loyola come from Catholic families.
[8] Until relatively recently, public education in Quebec was entirely confessional in nature and public schools were organized along denominational lines, under the complete control of the Catholic and Protestant Committees of the Council of Public Instruction, who “ran their respective schools with little or no government interference”: Spencer Boudreau, “From Confessional to Cultural: Religious Education in the Schools of Québec” (2011), 38 Religion & Education 212, at p. 213.
[9] With the Quiet Revolution in the 1960s, the state took charge of educational institutions formerly controlled by religious communities. By 2000, public schools were fully secularized and denominational schools no longer had official status in the public system. They were, however, permitted to operate as private schools: see S.L. v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235, at para. 12.
[10] The Ethics and Religious Culture (ERC) Program, which is the most recent step in the process of secularization of the school system, replaced all the remaining Catholic and Protestant religious programs with a secularized study of religion and ethics. It became mandatory for all schools, public and private, at the start of the 2008-2009 school year. At the secondary level, the program is required to be taught in four of the five years of school: Basic school regulation for preschool, elementary and secondary education, CQLR, c. I-13.3, r. 8, ss. 23 and 23.1.
[11] The ERC Program has two key stated objectives: the “recognition of others” and the “pursuit of the common good”. The first objective is based on the principle that all people possess equal value and dignity. The second seeks to foster shared values of human rights and democracy. By imposing this program in its schools, Quebec seeks to inculcate in all students openness to diversity and respect for others.
[12] In order to fulfil these objectives, the ERC Program has three components which seek to develop three competencies among students: the ability to understand “religious culture”, which includes the study of world religions; the ability to reflect on ethical questions; and the ability to engage in dialogue. The three competencies are intended to support and reinforce one another.
[13] 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 program takes a cultural and phenomenological rather than a doctrinal approach to the study of religions. Because of their role in Quebec’s history, it accords a prominent role to Catholicism and Protestantism, but teachers are also required to discuss Judaism, Islam, Hinduism, Buddhism, and Aboriginal belief systems.
[14] The purpose of the ethics component is to encourage students to critically reflect on their own ethical conduct and that of others, as well as on the values and norms that different religious and social groups adopt to guide their behaviour.
[15] The purpose of the dialogue component, which is integrated with the ethics and religious culture components, is to help students develop the skills to interact respectfully with people of different beliefs in a diverse society, and to understand the impact of their behaviour on the broader community.
[16] The ERC Program provides a framework that teachers must utilize to help students develop these competencies, but leaves teachers with considerable flexibility in developing their own lessons and structuring their course to convey this content.
[17] The major world religions are taught through themes. Students explore the elements of religious traditions, including different representations of divinity, creation stories, and religious rites, rules and duties. They also discuss Quebec’s religious heritage. They then learn about the founding and development of different world religions, and examine the ways that different traditions and philosophical texts have approached questions about divinity, the meaning of life and death, and the human condition generally. And they draw on literature to explore different kinds of religious experiences, methodologies for transmitting religion, and ways religious experiences shape people and communities.
[18] Students develop competency in ethics by exploring themes such as freedom, autonomy, and tolerance, among others. They develop competency in dialogue by learning about different forms of dialogue; strategies for developing, explaining or challenging a point of view; and processes and patterns of thought that can undermine dialogue, such as stereotyping and prejudice.
[19] The orientation of the ERC Program is strictly secular and cultural; it requires teachers to take a “professional stance” of objectivity and impartiality. That means that they are not to advance the truth of a particular belief system or attempt to influence their students’ beliefs. Instead, their role is to foster awareness of diverse values, beliefs and cultures. Teachers in the program are therefore expected to act as mediators to help their students develop the critical capacity to understand, articulate and question different points of view.
[20] The ERC program has already been scrutinized — and found to be constitutional — by this Court in the context of the public school system. In S.L., a group of parents claimed that the program would confuse their children and interfere with their religious training because it exposed them to information about various world religions from a secular perspective. They argued that this amounted to a violation of s. 2 (a) of the Charter .
[21] The Court rejected their claim and affirmed the constitutionality of the ERC Program as a mandatory component of the curriculum in public schools. In her reasons, Justice Deschamps observed that
[p]arents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2 (a) of the Canadian Charter and of s. 3 of the Quebec Charter. [S.L., at para. 40]
[22] The same Ethics and Religious Culture Program is now before us in the context of a private denominational school. Like their counterparts in the public school system, the core curriculum of private denominational schools is regulated by the province and is compulsory: Education Act, CQLR, c. I-13.3, ss. 447 and 459; Basic school regulation for preschool, elementary and secondary education, ss. 23 and 23.1; An Act respecting private education, CQLR, c. E-9.1, ss. 25 and 32.
[23] A private school is entitled to provide an alternative but “equivalent” program if the Minister approves its content. Section 22 of the Regulation respecting