On March 19, the Supreme Court of Canada released its long-anticipated Loyola decision[i] and came very close to saying that there is a religious freedom right, protected by the Charter, for religious corporations. It was only one vote short. However, the entire seven-member panel of the Court ruled that religious freedom does have “communal aspects.” Three judges were prepared to go all the way to recognize religious freedom rights for a religious corporation, but the other four did not see the need to decide the question of religious corporations in this case. However, this decision is a major step forward in the evolution of religious freedom since the Charter came into effect in 1982.
The case centred on the Quebec government’s insistence that Montreal’s Loyola High School, a private Catholic school, be “neutral” in teaching the Ethics and Religious Culture curriculum. That is a very difficult and imposing obligation for a religious school that exists to pass on a religious faith. Loyola had no problem being “neutral” in teaching other faiths; however, it requested an exemption from teaching its own Catholic faith and the ethics portion of the course in a “neutral” way. The Quebec government refused the request and demanded the school be “non-confessional” in teaching the course. After almost a year since the court hearing, the Supreme Court of Canada has ruled that the Quebec government’s position violated the Charter right of religious freedom.
RELIGIOUS FREEDOM AS A COMMUNAL RIGHT
Quebec argued that religious freedom was solely an individual right and that religious corporations, such as Loyola High School, had no right to claim religious protection. The Canadian Council of Christian Charities (CCCC) intervened with written arguments, claiming that religious corporations have the right to religious freedom.
While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.”[ii] But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”[iii]
Failure to recognize this aspect of religious freedom would denigrate religions that emphasize communal worship and other communal activities.[iv] When the state told Loyola how it was to teach Catholicism, it was “telling them how to teach the very religion that animates Loyola’s identity.”[v] Further, it interfered with the rights of parents to transmit the Catholic faith to their children because it prevented “a Catholic discussion of Catholicism.”[vi] The Minister’s refusal to allow Loyola to teach Catholicism as a Catholic institution assumed that engagement of one’s own religion on his or her own terms was disrespectful toward others. That assumption was unreasonable.[vii]
Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”[viii]:
The individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.[ix]
MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection[x] as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.[xi]
Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation.[xii] Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual.[xiii] In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.
McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.
Justice Abella decided that the Charter right to religious freedom was not infringed by requiring Loyola to “teach ethics of other religions in a neutral, historical and phenomenological way.”[xiv] She is of the view that learning about other belief systems in denominational schools is particularly important.[xv] It requires flexibility and delicate handling by making some adjustments to the program. However, the state is not to abandon its objectives nor are Loyola’s teachers to “shed their own beliefs.”[xvi] The Minister needs to strike a proper balance between the Charter protections and state objectives in reviewing Loyola’s proposal.
Therefore, Justice Abella sent the matter back to the Quebec Government to reconsider its decision in denying Loyola the opportunity to use its own approach to reach the government’s objectives in teaching the Ethics and Religious Culture course. However, Justice McLachlin was of the view that this was unnecessary. The Quebec Government, according to McLachlin, should simply grant Loyola the exemption forthwith. Loyola has waited long enough for a remedy.
Unfortunately, the Court did not grant Loyola its legal costs. That is a very unusual result—especially because the Court ruled against the decision of the Quebec government. One wonders whether this is something we can expect more of in the future of religious freedom cases. Should a religious organization have to pay its legal costs when its religious freedom has been violated? I think not.
There are a number of takeaways from this decision:
- It is a very positive decision. The fact that all seven justices recognized the “communal aspects” of religious freedom is very significant. It is but a small incremental step for a future court decision to clearly enunciate the boundaries of corporate religious freedom.
- It is evident that the Court struggled to arrive at its decision. A 4-3 division is evidence of the intensity with which the Court operated.
- It is unfortunate that the majority did not give Loyola the remedy forthwith, nor give its legal costs. After waiting seven years, Loyola must still wait to see if the Quebec government will in fact give the exemption.
Church spires continue to pierce the skyline of small town Canada. While they remain faith monuments of previous generations, they are also evidence of the communal aspect of religion. It is reassuring to see that the highest Court recognizes the communal aspects of religion. However, the recognition of religious freedom rights for religious corporations waits for another day.
[i] Loyola High School v. Quebec (Attorney General), 2015 SCC 12. Found online: < http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do> accessed March 20, 2015.
[ii] Para. 33.
[iii] Para. 60.
[iv] Para. 60.
[v] Para. 63.
[vi] Para. 64.
[vii] Para. 69.
[viii] Para. 91.
[ix] Para. 94.
[x] Para. 95.
[xi] Para. 100.
[xii] Para. 138.
[xiii] Para. 139.
[xiv] Para. 71.
[xv] Para. 72.
[xvi] Para. 78.