On December 4, 2012, the Quebec Court of Appeal ruled in Québec (Procureur général) c. Loyola High School,1 that Loyola High School, a private Catholic high school in Montreal, was required to teach a secular Ethics and Religious Culture Course (the "Course"), and could not substitute an international religions course taught from a Catholic perspective. The decision will be of particular interest to private religious educational institutions across Canada, as the Court accepted an unprecedented degree of Government interference with the content of religious instruction in a private school.
The Facts
The Québec Ministry of Education developed the Course as part of a deliberate effort to replace existing Catholic and Protestant programs of religious and moral instruction in Québec's public schools with non-denominational ethical instruction and the presentation of various religions in a manner intended to be "cultural" rather than "religious", and "neutral" rather than "partisan". While students were previously allowed to choose between Catholic instruction, Protestant instruction or a non-confessional morality and ethics course, from 2005 to 2008, the Québec Government gradually moved to replace this system with the single, mandatory Course. The Québec Minister of Education has stated that the change was intended to better reflect the increasingly pluralistic reality of Québec. Under the applicable legislation, the Course is mandatory for all Grade 1 to Grade 11 students in Québec, regardless of whether they attend public or private schools or are homeschooled. Parents are not given the option of exempting their children from the course.
In S.L. v. Commission scolaire des Chênes,2 the Course was challenged by the Roman Catholic parents of students attending a public school in Drumondville, Québec. The parents asked the school board to exempt their children from participating in the Course. The parents argued that the course imposed a normative pluralism, trivialized religion, and promoted relativism. Furthermore, they argued that the mandatory nature of the course undermined parental choice with regard to their children's religious education. In a decision released on February 17, 2012, the Supreme Court of Canada upheld the validity of the Course, finding that exposing children to the views of various religions did not constitute an indoctrination of students that would infringe their parents' freedom of religion.3
One question not addressed by the Supreme Court of Canada was whether private religious schools could also be required to teach the Course. That question has now been answered in the affirmative by the Québec Court of Appeal in a case involving Loyola High School, a Jesuit-administered Catholic private school. Loyola asked the Minister of Education, Sports and Leisure for an exemption from teaching the course on the basis that it was premised on a moral relativism incompatible with Catholic beliefs. It asked the Minister for permission to instead continue teaching an existing course covering similar content, and intended to achieve the same goals, as the Course, but from a Catholic perspective. The Minister refused to grant an exemption, and informed Loyola that the Course could not be taught according to ministerial expectations within a "confessional" context.
Loyola has sought leave to appeal the decision to the Supreme Court of Canada.
Loyola took the case to court, arguing that prohibiting religious instruction in a private Catholic school infringed upon the parental right to ensure the religious and moral education of their children in accordance with their convictions. Loyola was successful in the Québec Superior Court, but unsuccessful on the Minister's appeal to the Québec Court of Appeal. The Court of Appeal found that:
- The Minister was within the sphere of discretion conferred upon her by the legislature in designing and implementing the Course, which was consistent with the legislative intent to "deconfessionalize" education in Québec.
- The Minister's decision that the alternative course taught by Loyola was not equivalent to the Course was entitled to a high degree of deference from the Court. While the two courses were similar, Loyola's course was undoubtedly taught from a Catholic perspective. The Minister was within her discretion when deciding that the objectives of the course could not be fulfilled if taught from a religious perspective.
- There was doubt as to whether Loyola, as a corporate body, was entitled to freedom of religion (a right accorded only to "individuals" under the Canadian Charter of Rights andFreedoms).4
- There was no significant infringement of religious rights in this case, given that the Course was only one of many courses taught at the school and did not require teachers to refute Catholic beliefs, but only to refrain from expressing their opinions or convictions about any of the religions discussed in the Course. Requiring Loyola to teach various religious beliefs from a global and ethical perspective without requiring adherence to those beliefs did not constitute an infringement of religious freedom. It simply entailed Loyola putting aside its Catholic perspective for the duration of one class.
- Even if there were an infringement of religious freedom, that infringement was justified by the Course's important goals of acknowledging diversity and the pursuit of the common good.5
Loyola has sought leave to appeal the decision to the Supreme Court of Canada. It remains to be seen whether that Court is prepared to entertain a second appeal involving the same legislation it considered so recently in S.L. v. Commission scolaire des Chênes.
Implications of the Case
The Québec Court of Appeal's decision, like the Supreme Court of Canada's decision in S.L. v.Commission scolaire des Chênes, evinces a clear preference for a secular approach towards religious instruction. Taken together, the two decisions seem to be signaling an increased judicial willingness to limit administrators' and parents' right to control the religious instruction that their children receive in school, in order to promote multiculturalism and dialogue between religious faiths.
While the Supreme Court of Canada has held in the past that the right to freedom of religion does not include the right to denominational schools,6 the Loyola decision arguably goes further, and suggests that religious indoctrination in private schools can, to some extent, be prohibited. In weighing the importance of the case, however, it is important to note that:
- The Court's decision was based, in part, upon the fact that the Québec Government had prescribed only a single course that had to be taught from a secular perspective. It is by no means clear that the Court would have upheld a law that purported to prohibit all Catholic instruction at Loyola.
- The Loyola decision may be of limited application to Catholic separate schools in Ontario, and to denominational schools in Saskatchewan and Alberta. In each of those provinces, separate schools have a unique constitutional status that provides additional protection of their denominational character from interference by the provincial governments.
Footnotes
1. 2012 QCCA 2139.
2. [2012] S.C.J. No. 7.
3. For a more detailed discussion of the Supreme Court of Canada's decision, please refer to the Spring 2012 edition of BLG's Education Law Newsletter.
4. The Québec Attorney General argued that as a "moral person" (i.e a corporation, organization or institution that is not a human being but is deemed to be a "person" for the purposes of the law) the Board did not have the right to freedom of religion under the Canadian Charter of Rights and Freedoms. There is some debate in the case law as to whether a School Board can invoke freedom of religion in cases where Provincial legislation would result in "exceptional prejudice" to the Board and the people it represents. See Good Spirit School Division, No. 204, v. Christ the Teacher Roman Catholic Separate, School Division No. 212, 2012 SKQB 343 at paras. 26 to 35, affirmed, 2012 SKCA 99.
5. Ibid., at para. 181.
6. Adler v. Ontario, [1996] 3 S.C.R. 609 at 640 – 642, Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377 at 401, Reference re: Education Act (Que.), [1993] 2 S.C.R. 511 at 529 and 539 – 540.
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