Loyola v Quebec, Part I – the Majority: Water in Loyola’s Wine

This is the first part of a two-part comment on the Supreme Court of Canada (“SCC”) decision in Loyola High School v Quebec (Attorney General), 2015 SCC 12 [Loyola]. It will summarize the majority opinion of Justice Abella. Unlike the concurring opinion of Chief Justice McLachlin, which will be set out in Part II, Abella confines her analysis to the decision-making framework set out in Doré v Barreau du Québec, [2012] 1 SCR 395 [Doré], which applies when discretionary administrative decisions engage the Charter.

Loyola involves a decision by Quebec’s Minister of Education, Recreation and Sport to deny Loyola High School (“Loyola”) an exception from a provincially-mandated course on world culture and religion. Loyola is a private English-language Catholic secondary school for boys, established by Jesuits in the 1840s.

Facts and Judicial History

As part of a decades-long secularization of its education system, the Government of Quebec replaced all remaining Catholic and Protestant religious courses with a mandatory Ethics and Religious Culture (“ERC”) program for the 2008–2009 school year. The program was strictly secular and required teachers to be objective and impartial in their instruction.

The ERC program became part of Quebec’s core curriculum and as such was compulsory. However, private schools were entitled to seek an exemption if they provided an equivalent alternative.

On March 30, 2008, five months before the course became mandatory, Loyola applied for an exemption. It claimed that the program was incompatible with its Catholic mission and convictions. It proposed an alternative program that discussed major world religions and ethical positions but had a Catholic doctrine as its normative core.

The Minister denied Loyola’s request for the exemption. She determined that its alternative program was faith-based as opposed to cultural, and this did meet the ERC Program’s objectives. Loyola brought an application for judicial review, arguing that the normative pluralism “underpinning the program violated freedom of religion because it was ‘incompatible with Loyola’s character as a Catholic institution'” (Loyola, para 29).

The application judge accepted this argument, concluding the Minister’s decision was incorrect and violated Loyola’s right to religious freedom. The Quebec Court of Appeal disagreed and overturned the decision. It concluded the ERC program did not interfere with religious freedom in any substantial way.

The Doré Framework

Justice Abella begins her analysis by setting out the Doré framework using academic literature produced since the decision’s release:

As Aharon Barak explained, the purpose of a constitutional right is the realization of its constitutional values… . In the Doré analysis, Charter values — those values that underpin each right and give it meaning — help determine the extent of any given infringement in the particular context and, correlatively, when limitations on the right are proportionate in light of the applicable statutory objectives… .

On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate… . Reasonableness review is a contextual inquiry… . In the context of decisions that implicate the Charter, to be defensible, a decision must accord with the fundamental values protected by the Charter (Loyola, paras 36-37 [emphasis added]).

Justice Abella stresses the contextual aspect of the Doré framework. She notes that it responds to the diverse statutory and procedural contexts that decision makers operate within, and provides a degree of deference to the expertise the decision makers bring to the balancing exercise.

In applying Doré to Loyola’s request for an exemption, Justice Abella considered the statutory objectives of the regulation allowing for alternative programming for private schools. She found that in order to be consistent with these objectives, the Minister must consider the competencies the province wished to inculcate in students when it designed the ERC program. She determined these competencies to be flexible and thematic, allowing for significant variation in instruction, as long as the competencies were tied to the program’s goals: the recognition of others and the pursuit of the common good.

Bearing this in mind, the Minister’s task when deciding to grant an exemption was to balance the realization of the ERC program’s goals with respect for the Charter‘s protection of Loyola’s collective practice of Catholicism and the transmission of the Catholic faith.

By requiring that all aspects of Loyola’s alternative program be taught from a neutral perspective, including its instruction on Catholicism, the state was telling it how to teach the religion that “animates” it’s identity. This interferes with the rights of parents to transmit their faith to their children through communal institutions. As a result, the Minister’s decision limited freedom of religion more than necessary given the statutory objectives.

Despite this conclusion, Justice Abella did not fully endorse Loyola’s alternative program. The program wished to teach other ethical frameworks from the “lens” of Catholic ethics and morality. It was determined that this would transform the ethics component from a study of different ethical approaches to a study of Catholicism. This would delegitimize the other religions in a way that was contrary to the goals of the program. It was determined that requiring Loyola’s teachers to discuss other religion’s ethics in an objective way would not be a serious interference with their freedom of religion.

As a result, she allowed the appeal and remitted the matter to the Minister for reconsideration.

Conclusion

By requiring Loyola to teach the ethics of religions other than Catholicism in a neutral and objective way, Loyola was forced to take some water in their wine. As a result, the decision functions more as a helpful rearticulation of the Doré framework than an strong endorsement of freedom of religion in private educational institutions.