Loyola v Quebec, Part II: Freedom of Religion for Religious Organizations

This is the second 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 judgment of Chief Justice McLachlin and Justice Moldaver, which partially concurred with the majority judgment of Justice Abella.

As described in Part I, 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 Ethics and Religious Culture (“ERC”) program. Loyola is a private English-language Catholic secondary school for boys, established by Jesuits in 1848. For the facts and judicial history of the case, please see Part I.

The central difference between the majority judgment and the judgment of McLachlin and Moldaver is the treatment of Loyola’s argument that, as a religious organization, the school itself was entitled to religious freedom under section 2(a) of the Charter. While the majority avoided the issue, finding it was not necessary to dispose of the appeal, McLachlin and Moldaver answered it directly. They found religion’s communal character means that protecting individuals’ religious freedom requires protecting the religious freedom of religious institutions, including religious educational bodies such as Loyola.

Freedom of Religion for “Religious” Corporations

McLachlin C.J. and Moldaver J. support their view that corporations may be entitled to religious freedom with a laundry list of domestic and international caselaw and human rights documents that discuss the communal nature of religious belief. For example, Syndicat Northcrest v Amselem, [2004] 2 SCR 551 [Amselem], states that the freedom religion must “protect” religious institutions and permit “collective development of belief”; Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567, states that religion is about “religious relationships” and the “maintenance of communities of faith”; and article 18 of the Universal Declaration of Human Rights states that everyone has the rights to freedom of religion in “community with others” and to “manifest his religion or belief in teaching.”

At paragraphs 94 and 95, they conclude:

The individual and collective aspects of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which individuals express their religious practices and through which they transmit their faith.

In this respect, the guarantee of freedom of religion resembles the guarantees of freedom of expression, freedom from unreasonable search and seizure and trial within a reasonable time, all of which have been held to apply to corporations…

Freedom of religion is not to be provided to all corporations. In order to receive section 2(a) protection, an organization must meet two requirements. First, it must be constituted primarily for religious purposes. Second, its operation must accord with these religious purposes. While McLachlin C.J. and Moldaver J. note that the scope of these requirements will likely require clarification in future cases, they are certain that Loyola, as a non-profit religious corporation offering Jesuit education for Quebec’s Catholic community, falls into their ambit.

The ERC Program, Loyola, and the Freedom of Religion

After finding that Loyola was entitled to 2(a) protection, McLachlin C.J. and Moldaver J. moved on to determine whether Loyola’s freedom was infringed by the Minister’s decision, and if so, whether the infringement was more than reasonably necessary to achieve the goals of the ERC Program.

In determining whether Loyola’s freedom was infringed, the justices adapted the two-part test from Amselem and Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, to apply to an organization:

(1) Is Loyola’s claimed belief that it must teach ethics and its own religion from the Catholic perspective consistent with its organizational purpose and operation?; and (2) Does the Minister’s decision to deny Loyola an exemption from the ERC Program interfere with Loyola’s ability to act in accordance with this belief in a manner that is more than trivial or insubstantial?

Both questions were answered in the affirmative using the “extensive findings of fact” by the application judge. For question one, senior officials at Loyola provided evidence that they were convinced that to accomplish its goals as a Catholic education institution, Loyola must teach an ethics and religion course according to the precepts of the Catholic religion. For question two, the ERC Program was determined to be incompatible with Catholic education and that, by teaching it, Loyola would violate “fundamental and mandatory” tenants of the Catholic Church.

When determining whether the infringement was more than reasonably necessary to achieve the goals of the ERC Program, McLachlin and Moldaver found that the Minister erred in finding that only a cultural and non-denominational approach could serve as equivalent to the ERC Program. While they noted that there are justifiable limitations to the religious freedoms of private schools, in this instance they found the Minister’s definition did not allow schools to develop a “meaningfully individualized approach”.

McLachlin and Moldaver ordered the Minister to grant Loyola’s exemption from the ERC Program and offer an equivalent course based on the school’s previous proposal.

Conclusion

Although the majority did not find that Loyola was entitled to section 2(a) protection, it did not rule it out. It seems likely that the issue of religious freedom for organizations will be litigated again, and when it does, Chief Justice McLachlin and Justice Moldaver’s Loyola concurrence will be very persuasive.