You may have noticed that recently Québec has been a cauldron of angst regarding all matters religious. The current debate over the “Charter of Values”[2] is forming a dynamic backdrop to Loyola’s opposition to the government’s imposition of the ERC as it now gets ready to have its case heard in Ottawa.

The school does not object to the ERC goals (recognition of others and pursuit of the common good) or competencies (ethical reflection, understanding of religion, and dialogue), but it does object to the ERC’s restrictions against the teacher sharing his/her religious or ethical views in the classroom. When the school asked for an exemption to the ERC and the right to use its own curriculum instead, the government said no because the school’s approach was faith-based rather than “cultural”. In cross examination, government officials agreed that during the course a Catholic teacher could not favour one moral position, such as marital fidelity, over another.[3]

The Québec government is also making a strident argument that religious corporations do not have a right to religious freedom. Religious freedom, they argue, is only for individuals. I am doubtful that the Supreme Court will buy into that position since the Court has recognized in the past that religious freedom has communal aspects.[4]  However, the Court has not categorically defined exactly what the parameters are for the religious freedom rights of religious bodies as distinct from individuals. This case is a prime opportunity to address the issue. Should the Québec government convince the Court otherwise, then we can expect serious challenges to the operations of religious communities in the future—particularly their internal governance.

Background

Loyola High School in Montréal is an all-boys private school run by the Jesuit Order and a registered charity. As a confessional school, it’s very purpose is to inculcate the teachings of the Roman Catholic Church for the next generation of young men. It is very open about that goal. It is why it exists. In fact, the goal of teaching the faith to the next generation is the reason why private Christian schools operate throughout all of Canada. In many ways, the future of such religious communities are dependent on the successful transmission of the faith that occurs in the schools. For this reason, what is and is not taught in the classroom is a cause of great concern.

Government also has an interest in education. Properly educated citizens have the means to take on their responsibilities to ensure our liberal democracy operates in its best form. Failure to educate a child contributes to financial and emotional poverty. Such a cost is not in our society’s interest. It is not surprising, therefore, that education is the lightening rod that is given to the stakeholders—parents, church, and state.

The Problem

Loyola’s core objection to the ERC is that the teacher of the ERC is not permitted to share his/her religious or ethical views in the classroom. In other words, Loyola’s teachers cannot use the Roman Catholic viewpoint when instructing their students; they cannot uphold Catholic teachings on ethical issues or teach that  the Christian understanding of God is true.

In short, during the time the ERC course is taught, Loyola is expected by the Québec Government to lay aside its Roman Catholicism. It must be neutral. For all intents and purposes during that time it ceases to be a Roman Catholic school. In this way, the state has carved a “neutral” space out of a private religious school’s schedule for students to be taught religion and ethics from a secular point of view.

The Road To Court

Loyola requested of the Québec Ministry of Education, Recreation and Sport (“MELS”) an exemption from the ERC on the basis that its own program meets the two objectives and the three competencies. MELS denied the request on the basis that Loyola’s program was “confessional”—it taught from a faith perspective, and that was unacceptable.

At the trial court, the judge said that the MELS decision could not be based on confessionality but only on the basis of whether Loyola’s program was equivalent. The Québec Government argued that because Loyola was a corporation, it did not have the right to religious freedom. The trial judge disagreed with the government and held that as a religious corporation and as a religious school it benefited from freedom of religion.

The judge was not impressed with how MELS handled the matter and said that violating the religious freedom of Loyola was comparable to the treatment of Galileo by the Roman Catholic Church in the 17^th Century. The violation was not justified in a free and democratic country.

The Québec Court of Appeal (“CA”) took an opposite position to that of the trial judge. The CA did not address the Québec government’s argument that it had no obligation to guard the religious freedom of Loyola because Loyola was a corporation and had no right to religious freedom. As far as the CA was concerned, the government’s decision was reasonable, and given that government sought to “deconfessionalise education,” it had every right to use confessional manner of teaching as a criteria to deny Loyola’s request for an exemption.

The case is now before the Supreme Court of Canada. Loyola has filed its factum. Potential interveners have until December 2, 2013 to apply for permission to intervene in the case.

Why CCCC is Involved

As a membership organization of over 3,300 Christian charities across Canada, the CCCC views religious freedom as integral to the right of religious organizations to continue their ministries of service. The following reasons outline why CCCC has taken the decision to apply to the Supreme Court for Intervener status:

• To highlight the importance of our Christian identity. Religious organizations are groups of like-minded individuals who have come together to practically implement their religious beliefs. For example, a group of individuals who are Mennonites may want to organize a peace and reconciliation ministry as a public expression of their theological understanding of the Gospel of peace as taught in the New Testament Scriptures. Though this organization might be carrying out work that a secular or a non-religious group may want to start, the fact remains that it was this particular religious group who came together and they ought to be permitted to carry out their faith in the manner they so choose. The ability to carry out those works of service requires each organization to maintain their own Christian identity as they understand themselves.
• To reinforce the historical importance of freedom of religion. The Supreme Court of Canada has noted that religious freedom has historically been prototypical. Chief Justice Dickson wrote, “Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously‑held beliefs and manifestations and are therefore protected by the Charter.”[5]  This suggests that religious freedom was often the first freedom in western democracies, followed by other freedoms, such as freedom of speech, freedom of assembly, and so on. In the modern era (since the Reformation), it has been religious freedom that has led the way to even greater civil liberties. In the 20^th Century, country after country that denied religious freedom denied all other freedoms. Freedom of religious institutions has a long historical presence with freedom of religion for the individual. They are symbiotic .
• To examine and clarify the legal perspective on the religious freedom of religious institutions. There has been little discussion in constitutional jurisprudence about the religious freedom of religious institutions. This case presents an opportunity for the law to develop its understandings in that regard.  While we have yet to have a detailed analysis of the religious freedom of religious institutions, there have been a number of statements that suggest the law already has an understanding of this concept, though it has not been as clearly articulated as it should. Justice Rand, in a 1953 decision, stated:

Strictly speaking, civil rights arise from positive law; but freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.[6]

Justice McLachlin stated that she agreed “that religious freedom has both individual and collective aspects.”[7]

• To avoid potential consequences.  What if religious institutions are not recognized as having a religious freedom right?  The following challenges come to mind:
  • Discrimination. There is a growing trend to view faith-based practises as discriminatory. For example, religious organizations that only hire those who are in harmony with their faith commitments may be viewed as discriminatory.
  • Identity. As outlined above, if religious institutions do not have religious freedom, then they will be forced to lose their identity and adopt a secular framework.
  • Devaluing of Religion. Should religious institutions not have religious freedom, then one has to wonder whether the secularizing forces will target the so-called privileges of religion—property tax exemption for church properties.
• To educate. By intervening in this case, CCCC is taking responsibility to educate the Canadian judiciary and society at large about the important role of Christian charities. Some members of society appear to be of the view that the stronger a person’s religious conviction, the more they disdain others. However, we know different. Our 3,300 members work day in and day out in service for others. We serve not expecting a thing in return. The false assumptions of the nature of religious organizations are to be challenged. By taking an active role in this case, we are affirming the rights of religious communities across the country to be true to their faith inspired commitment to respect and serve others with an open heart.

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