Loyola High School v. John Zucchi, 2015 SCC 12

SUPREME COURT OF CANADA Citation: Loyola High School v.

Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 Date: 20150319 Docket: 35201 Between: Loyola High School and John Zucchi Appellants and Attorney General of Quebec Respondent - and - Canadian Council of Christian Charities, Evangelical Fellowship of Canada, Christian Legal Fellowship, World Sikh Organization of Canada, Association of Christian Educators and Schools Canada, Canadian Civil Liberties Association, Catholic Civil Rights League, Association des parents catholiques du Québec, Faith and Freedom Alliance, Association de la communauté copte orthodoxe du grand Montréal, Faith, Fealty and Creed Society, Home School Legal Defence Association of Canada, Seventh-day Adventist Church in Canada, Seventh- day Adventist Church — Quebec Conference, Corporation archiépiscopale catholique romaine de Montréal and Archevêque catholique romain de Montréal Interveners Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 81) Joint Reasons Concurring Partially in Result: (paras. 82 to 165): Abella J. (LeBel, Cromwell and Karakatsanis JJ. concurring) McLachlin C.J. and Moldaver J. (Rothstein J. concurring)

Loyola High School v. Quebec (Attorney General) , 2015 SCC 12, [2015] 1 S.C.R. 613 Loyola High School and John Zucchi Appellants v.

Attorney General of Quebec Respondent and Canadian Council of Christian Charities, Evangelical Fellowship of Canada, Christian Legal Fellowship, World Sikh Organization of Canada, Association of Christian Educators and Schools Canada, Canadian Civil Liberties Association, Catholic Civil Rights League, Association des parents catholiques du Québec, Faith and Freedom Alliance, Association de la communauté copte orthodoxe du grand Montréal, Faith, Fealty and Creed Society, Home School Legal Defence Association of Canada, Seventh-day Adventist Church in Canada, Seventh-day Adventist Church — Quebec Conference, Corporation archiépiscopale catholique romaine de Montréal and Archevêque catholique romain de Montréal Interveners Indexed as: Loyola High School v.

Quebec (Attorney General) 2015 SCC 12 File No.: 35201. 2014: March 24; 2015: March 19.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the court of appeal for quebec Administrative law — Judicial review — Standard of Review — Ministerial discretion — Mandatory ethics and religious culture program — Private denominational school proposing alternative program — Request for exemption denied by Minister — Proper approach to judicial review of discretionary administrative decisions engaging Charter protections — Whether Minister’s decision proportionately balanced religious freedom with statutory objectives of mandatory program — Regulation respecting the application of the Act respecting private education, CQLR, c.

E-9.1, r. 1, s. 22 . Constitutional law — Charter of Rights — Freedom of religion — Schools — Mandatory ethics and religious culture program — Private denominational school proposing alternative program — Request for exemption denied by Minister — Whether Minister’s insistence that proposed alternative program be entirely secular in its approach is reasonable given the statutory objectives of mandatory program and s. 2(

a) of the Canadian Charter of Rights and Freedoms. Human rights — Freedom of religion — Schools — Mandatory ethics and religious culture program — Private denominational school proposing alternative program — Request for exemption denied by Minister — Whether Minister’s insistence that proposed alternative program be entirely secular in its approach is reasonable given the statutory objectives of mandatory program — Whether Minister’s decision limits freedom of religion under s. 3 of the Charter of human rights and freedoms, CQLR, c. C-12 .

Loyola High School is a private, English-speaking Catholic high school for boys. It has been administered by the Jesuit Order since the school’s founding in the 1840s. Most of the students at Loyola come from Catholic families.

Since September 2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education,Recreation and Sports has required a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics ofdifferent world religions from a neutral and objective perspective. The stated objectives of the ERC Program are the “recognition of others” and the “pursuit of the common good”. They seekto inculcate in students openness to human rights, diversity and respect for others.

To fulfil these objectives, the ERC Program has threecomponents: world religions and religious culture, ethics, and dialogue. The three components are intended to support and reinforce oneanother. The orientation of the Program is strictly secular and cultural and requires teachers to be objective and impartial. They are not toadvance the truth of a particular belief system or attempt to influence their students’ beliefs, but to foster awareness of diverse values,beliefs and cultures.

The Program provides a framework that teachers are required to use to help students develop these competencies,but leaves teachers with considerable flexibility in developing their own lessons. The purpose of the religious culture component is to help students understand the main elements of religion by exploring thesocio-cultural contexts in which different religions take root and develop.

The purpose of the ethics component is to encourage studentsto think critically about their own ethical conduct and that of others, as well as about the values and norms that different religious groupsadopt to guide their behaviour. The purpose of the dialogue component is to help students develop the skills to interact respectfully withpeople of different beliefs. Pursuant to s. 22 of the Regulation respecting the application of the Act respecting private education, the Minister can grantan exemption from the ERC Program if the proposed alternative program is deemed to be “equivalent”.

Loyola wrote to the Minister torequest an exemption from the Program, proposing an alternative course to be taught from the perspective of Catholic beliefs and ethics.The Minister denied the request based on the fact that Loyola’s whole proposed alternative program was to be taught from a Catholicperspective. It was not, as a result, deemed to be “equivalent” to the ERC Program. Loyola brought an application for judicial review of the Minister’s decision.

The Superior Court found that the Minister’srefusal of an exemption infringed Loyola’s right to religious freedom and accordingly granted the application, quashed the Minister’sdecision, and ordered an exemption. On appeal, the Quebec Court of Appeal concluded that the Minister’s decision was reasonable anddid not result in any breach of religious freedom. Before this Court, Loyola modified its request to teach the whole program from aCatholic perspective, and was now prepared to teach about the doctrines and practices of other world religions neutrally.

But,significantly, it still wanted to teach about the ethics of other religions from a Catholic perspective. The Minister’s position remained thesame — no part of the program could be taught from a Catholic perspective, including Catholic doctrine and ethics. Held: The Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective,including the teaching of Catholicism, limited freedom of religion more than was necessary given the statutory objectives. As a result, itdid not reflect a proportionate balancing and should be set aside.

The appeal is allowed and the matter remitted to the Minister forreconsideration. Per LeBel, Abella, Cromwell and Karakatsanis JJ.: This Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, sets out the applicable framework for reviewing discretionary administrative decisions that engage theprotections of the Charter — both its guarantees and the foundational values they reflect. The discretionary decision-maker is required toproportionately balance the relevant Charter protections to ensure that they are limited no more than necessary given the applicablestatutory objectives.

The reasonableness of the Minister’s decision in this case therefore depends on whether it reflected a proportionatebalance between the objectives of promoting tolerance and respect for difference, and the religious freedom of the members of theLoyola community. Freedom of religion means that no one can be forced to adhere to or refrain from a particular set of religious beliefs. Thisincludes both the individual and collective aspects of religious belief.

Religious freedom under the Charter must therefore account forthe socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communalinstitutions and traditions. The context in this case is state regulation of religious schools. This raises the question of how to balance robust protectionfor the values underlying religious freedom with the values of a secular state.

The state has a legitimate interest in ensuring that studentsin all schools are capable, as adults, of conducting themselves with openness and respect as they confront cultural and religiousdifferences. A vibrant, multicultural democracy depends on the capacity of its citizens to engage in thoughtful and inclusive forms ofdeliberation. But a secular state does not — and cannot — interfere with the beliefs or practices of a religious group unless they conflictwith or harm overriding public interests. Nor can a secular state support or prefer the practices of one group over another.

The pursuit ofsecular values means respecting the right to hold and manifest different religious beliefs. A secular state respects religious differences, itdoes not seek to extinguish them. Loyola is a private Catholic institution. The collective aspects of religious freedom — in this case, the collectivemanifestation and transmission of Catholic beliefs — are a crucial part of its claim. The Minister’s decision requires Loyola to teachCatholicism, the very faith that animates its character, from a neutral perspective.

Although the state’s purpose is secular, this amounts torequiring a Catholic institution to speak about its own religion in terms defined by the state rather than by its own understanding. Thisdemonstrably interferes with the manner in which the members of an institution formed for the purpose of transmitting Catholicism canteach and learn about the Catholic faith. It also undermines the liberty of the members of the community who have chosen to give effectto the collective dimension of their religious beliefs by participating in a denominational school.

In the Quebec context, where private denominational schools are legal, preventing a school like Loyola from teaching anddiscussing Catholicism from its own perspective does little to further the ERC Program’s objectives while at the same time seriouslyinterfering with religious freedom. The Minister’s decision suggests that engagement with an individual’s own religion on his or her ownterms can be presumed to impair respect for others. This assumption led the Minister to a decision that does not, overall, strike aproportionate balance between the Charter protections and statutory objectives at stake in this case.

That said, the Minister is not required to permit Loyola to teach about the ethics of other religions from a Catholic perspective. The risk of such an approach would be that other religions would necessarily be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism. This contradicts the ERC Program’s goals of ensuring respect for different religious beliefs.

In a multicultural society, it is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the doctrines and ethics of other world religions in a neutral and respectful way. In a religious high school, where students are learning about the precepts of one particular faith throughout their education, it is arguably even more important that they learn, in as objective a way as possible, about other belief systems and the reasons underlying those beliefs.

Teaching the ethical frameworks of other religions in a neutral way may be a delicate exercise, but the fact that there are difficulties in implementation does not mean the state should be asked to throw up its hands and abandon its objectives by accepting a program that frames the discussion of ethics primarily through the moral lens of a school’s own religion. It is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the Charter protections and statutory objectives in issue.

Preventing a school like Loyola from teaching and discussing Catholicism, the core of its identity, in any part of the program from its own perspective, does little to further the ERC Program’s objectives while at the same time seriously interfering with the values underlying religious freedom. The Minister’s decision is, as a result, unreasonable. Per McLachlin C.J. and Rothstein and Moldaver JJ.: Loyola, as a religious organization, is entitled to the constitutional protection of freedom of religion.

The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola. The first issue is whether Loyola’s freedom of religion was infringed by the Minister’s decision. The second issue is whether the Minister’s decision — that only a purely secular course of study may serve as an equivalent to the ERC Program — limits Loyola’s freedom of religion more than reasonably necessary to achieve the goals of the program.

However one describes the precise analytic approach taken, the essential question raised by this appeal is whether the Minister’s decision limited Loyola’s right to religious freedom proportionately — that is, no more than was reasonably necessary. Loyola proposed an alternative to the ERC Program that takes the following form:

(1) Loyola will teach Catholicism from the Catholic perspective, but will teach other religions objectively and respectfully;

(2) Loyola will emphasize the Catholic point of view on ethical questions, but will ensure all ethical points are presented on any given issue; and

(3) Loyola will encourage students to think critically and engage with their teachers and with each other in exploring the topics covered in the program. Loyola’s proposal departs from the generic ERC Program in two key respects. When teaching both Catholicism and ethics, Loyola’s teachers would depart from the strict neutrality that the ERC Program requires. The freedom of religion protected by s. 2 (

a) of the Charter is not limited to religious belief, worship and the practice of religious customs. Rather, it extends to conduct more readily characterized as the propagation of, rather than the practice of, religion. Where the claimant is an organization rather than an individual, it must show that the claimed belief or practice is consistent with both its purpose and operation. While an organization itself cannot testify, the credibility of officials and representatives who give testimony on the organization’s behalf will aid in evaluating this consistency.

It is proper to assess the claimed belief or practice in light of objective facts such as the organization’s other practices, policies and governing documents. The beliefs and practices of an organization may also reasonably be expected to be less fluid than those of an individual, therefore inquiry into past practices and consistency of position would be more relevant than in the context of a claimant who is a natural person. This is not a case where the assessment of consistency is difficult, or where there is a reasonable concern that the expressed belief is made in bad faith or for an ulterior purpose.

Having found that Loyola’s belief in its religious obligation to teach Catholicism and ethics from a Catholic perspective is consistent with its organizational purpose and operation, it is evident that the Minister’s denial of an exemption from the ERC Program — which has the effect of requiring Loyola to teach its entire ethics and religion program from a neutral, secular perspective — infringes Loyola’s freedom of religion in violation of s. 2 (

a) of the Charter . The government bears the burden of showing that the Minister’s insistence on a purely secular program of study to qualify for an exemption limited Loyola’s religious freedom no more than reasonably necessary to achieve the ERC Program’s goals. There is nothing inherent in the ERC Program’s objectives (recognition of others and pursuit of the common good) or competencies (world religions, ethics, and dialogue) that requires a cultural and non-denominational approach.

As the legislative and regulatory scheme demonstrates, the intention of the government was to allow religious schools to teach the ERC Program without sacrificing their own religious perspectives. This goal is entirely realistic. A program of purely denominational instruction designed primarily to indoctrinate students to the correctness of certain religious precepts would not achieve the objectives of the ERC Program; however, a balanced curriculum, taught from a religious perspective but with all viewpoints presented and respected, could serve as an equivalent to the ERC Program.

To the extent Loyola’s proposal meets these criteria, it should not have been rejected out of hand. There is unquestionably a role for the Minister to examine proposed programs on a case-by-case basis to ensure that they adequately further the objectives and competencies of the ERC Program. In certain cases, the result may be that the religious freedoms of private schools are subject to justifiable limitations. Here, however, the Minister adopted a definition of equivalency that essentially read this meaningful individualized approach out of the legislative and regulatory scheme.

By using as her starting point the premise that only a secular approach to teaching the ERC Program can suffice as equivalent, the protection contemplated by the exemption provision at issue was rendered illusory. The legislative and regulatory scheme is designed to be flexible and to permit private schools to deviate from the generic ERC Program, so long as its objectives are met. The Minister’s definition of equivalency casts this intended flexibility in the narrowest of terms, and limits deviation to a degree beyond that which is necessary to ensure the objectives of the ERC Program are met.

This led to a substantial infringement on Loyola’s religious freedom. In short, the Minister’s decision was not minimally impairing. Therefore, it cannot be justified under s. 1 of the Charter as a reasonable limit on Loyola’s s. 2 (

a) right to religious freedom. Determining whether a proposed program is sufficiently equivalent to the generic ERC Program is a fact-based exercise. In

the context of the present case, Loyola’s teachers must be permitted to describe and explain Catholic doctrine and ethical beliefs from theCatholic perspective. Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective andrespectful way. Loyola’s teachers must maintain a respectful tone of debate, but where the context of the classroom discussion requiresit, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinalpropositions do not accord with those beliefs.

This Court is empowered by s. 24(1) of the Charter to craft an appropriate remedy in light of all of the circumstances. It isneither necessary nor just to send this matter back to the Minister for reconsideration, further delaying the relief Loyola has sought fornearly seven years. Based on the application judge’s findings of fact, and considering the record and the submissions of the parties, theonly constitutional response to Loyola’s application for an exemption would be to grant it. Cases Cited By Abella J. Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; considered: S.L. v.

Commission scolaire desChênes, 2012 SCC 7, [2012] 1 S.C.R. 235; referred to: Slaight Communications Inc. v. Davidson, (SCC), [1989] 1S.C.R. 1038; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Lake v. Canada (Minister ofJustice), 2008 SCC 23, [2008] 1 S.C.R. 761; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567;Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650; Chamberlainv. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Catalyst Paper Corp. v.

North Cowichan (District), 2012 SCC 2,[2012] 1 S.C.R. 5; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Eur. Court H. R., Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A;Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII; Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R.607; Adler v. Ontario, (SCC), [1996] 3 S.C.R. 609; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1S.C.R. 27; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v.

Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698. By McLachlin C.J. and Moldaver J. Applied: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3S.C.R. 134; referred to: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Alberta v. Hutterian Brethren of WilsonColony, 2009 SCC 37, [2009] 2 S.C.R. 567; Edmonton Journal v.

Alberta (Attorney General), (SCC), [1989] 2 S.C.R.1326; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. CIP Inc., (SCC), [1992] 1 S.C.R. 843;Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391;Sindicatul “Păstorul Cel Bun” v. Romania (2014), 58 E.H.R.R. 10; Metropolitan Church of Bessarabia v. Moldova, No. 45701/99,ECHR 2001-XII; Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct.694 (2012); National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979); R. v.

Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; S.L. v.Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235. Statutes and Regulations Cited Act respecting private education, CQLR, c. E-9.1, ss. 10, 25, 32, 111. Act respecting the Ministère de l’Éducation, du Loisir et du Sport, CQLR, c. M-15,

preamble, s. 2. Basic school regulation for preschool, elementary and secondary education, CQLR, c. I-13.3, r. 8, ss. 23, 23.1. Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 24(1). Charter of human rights and freedoms, CQLR, c. C-12, ss. 3, 41. Companies Act, CQLR, c. C-38,

Part III. Education Act, CQLR, c. I-13.3, ss. 447, 459, 461.

Interpretation Act, CQLR, c. I-16, s. 61(16). Regulation respecting the application of the Act respecting private education, CQLR, c. E-9.1, r. 1, s. 22. Treaties and Other International Instruments Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 [the European Convention on HumanRights], art. 9. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, arts. 18(1), (4). Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 18. Authors Cited Barak, Aharon. Human Dignity: The Constitutional Value and the Constitutional Right, trans. by Daniel Kayros. Cambridge: CambridgeUniversity Press, 2015.

Barak, Aharon. “Proportionality (2)”, in Michel Rosenfeld and András Sajó, eds., The Oxford Handbook of Comparative Constitutional Law . Oxford: Oxford University Press, 2012, 738. Berger, Benjamin L. “Religious Diversity, Education, and the ‘Crisis’ in State Neutrality” (2014), 29 C.J.L.S. 103. Bernatchez, Stéphane. “Les rapports entre le droit administratif et les droits et libertés: la révision judiciaire ou le contrôle constitutionnel?” (2010), 55 McGill L.J. 641. Boudreau, Spencer. “From Confessional to Cultural: Religious Education in the Schools of Québec” (2011), 38 Religion & Education 212.

Driedger, Elmer A. The Construction of Statutes . Toronto: Butterworths, 1974. Gibson, Dale. The Law of the Charter: Equality Rights . Toronto: Carswell, 1990. Grimm, Dieter. “Conflicts Between General Laws and Religious Norms” (2009), 30 Cardozo L. Rev. 2369. Habermas, Jürgen. “Religion in the Public Sphere” (2006), 14 Eur. J. of Philos. 1. Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights . Oxford: Clarendon Press, 1995. Macklem, Timothy. “Faith as a Secular Value” (2000), 45 McGill L.J. 1.

Moon, Richard. “Freedom of Religion Under the Charter of Rights : The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497. Mullan, David. “Administrative Tribunals and Judicial Review of Charter Issues After Multani ” (2006), 21 N.J.C.L. 127. Muñiz-Fraticelli, Victor, and Lawrence David. “Whence a nexus with religion? Religious institutionalism in a Canadian context”, forthcoming. Newman, Dwight. Community and Collective Rights: A Theoretical Framework for Rights held by Groups . Oxford: Hart, 2011. Quebec. Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles.

Building the Future: A Time for Reconciliation . Québec: The Commission, 2008 (Co-chairs: Gérard Bouchard and Charles Taylor). Quebec. Ministère de l’Éducation, du Loisir et du Sport. Establishment of an ethics and religious culture program: Providing future direction for all Québec youth . Québec: The Ministère, 2005. Sossin, Lorne, and Mark Friedman. “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391 . APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Wagner and Fournier JJ.A.), 2012 QCCA 2139 , [2012] R.J.Q. 2112, 46 Admin. L.R. (5th) 79, [2012] AZ-50918665, [2012] Q.J.

No. 15094 (QL), 2012 CarswellQue 12912 (WL Can.) , setting aside a decision of Dugré J., 2010 QCCS 2631 , [2010] R.J.Q. 1417, [2010] AZ-50647607, [2010] Q.J. No. 5789 (QL), 2010 CarswellQue 15823 (WL Can.) . Appeal allowed. Mark Phillips and Jacques S. Darche , for the appellants. Benoit Boucher , Dominique Legault , Amélie Pelletier-Desrosiers and Caroline Renaud , for the respondent. Barry W. Bussey and Derek Ross , for the intervener the Canadian Council of Christian Charities. Albertos Polizogopoulos and Don Hutchinson , for the intervener the Evangelical Fellowship of Canada. Robert E.

Reynolds and Ruth Ross , for the intervener the Christian Legal Fellowship. Palbinder K. Shergill , Q.C. , and Balpreet Singh Boparai , for the intervener the World Sikh Organization of Canada. Ian C. Moes and André Schutten , for the intervener the Association of Christian Educators and Schools Canada. Jean-Philippe Groleau , Guy Du Pont and Léon H. Moubayed , for the intervener the Canadian Civil Liberties Association. Ranjan K. Agarwal and Jack R.

Maslen , for the interveners the Catholic Civil Rights League, Association des parents catholiques du Québec, the Faith and Freedom Alliance and Association de la communauté copte orthodoxe du grand Montréal. Blake Bromley , for the intervener the Faith, Fealty and Creed Society. Jean-Yves Côté and Paul D. Faris , for the intervener the Home School Legal Defence Association of Canada. Gerald D. Chipeur , Q.C. , and Grace Mackintosh , for the interveners the Seventh-day Adventist Church in Canada and the Seventh-day Adventist Church — Quebec Conference. Milton James Fernandes and Sergio G.

Famularo , for the interveners Corporation archiépiscopale catholique romaine de Montréal and Archevêque catholique romain de Montréal. The judgment of LeBel, Abella, Cromwell and Karakatsanis JJ. was delivered by

[1] Abella J. — Since September 2008, as part of the mandatory core curriculum in schools across Quebec, theMinister of Education, Recreation and Sports has required a Program on Ethics and Religious Culture (ERC), which teaches about thebeliefs and ethics of different world religions from a neutral and objective perspective.

Like all courses in the mandatory curriculum, theMinister may grant private schools an exemption from the ERC Program if they offer an alternative program that the Minister deems tobe equivalent. [2] This appeal results from a judicial review of the Minister’s decision to deny an exemption sought by a private,Catholic school. The Minister based her decision on the fact that the school’s whole proposed program was to be taught from a Catholicperspective. It was not, as a result, “equivalent” to the ERC Program. The school submits that this is an interference with its religiousfreedom.

The Minister submits that it is a necessary strategy to ensure that students are knowledgeable about and respectful of thedifferences of others. In a sense, they are both right . . . [3] This Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12 , [2012] 1 S.C.R. 395, sets out theapplicable framework for assessing whether the Minister has exercised her statutory discretion in accordance with the relevant CanadianCharter of Rights and Freedoms protections. Doré succeeded a line of conflicting jurisprudence which veered between cases like SlaightCommunications Inc. v.

Davidson, (SCC), [1989] 1 S.C.R. 1038, and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 , [2006] 1 S.C.R. 256, that applied s. 1 (and a traditional Oakes analysis) to discretionary administrativedecisions, and those, like Lake v. Canada (Minister of Justice), 2008 SCC 23 , [2008] 1 S.C.R. 761, which applied anadministrative law approach.

The result in Doré was to eschew a literal s. 1 approach in favour of a robust proportionality analysisconsistent with administrative law principles. [4] Under Doré, where a discretionary administrative decision engages the protections enumerated in the Charter —both the Charter’s guarantees and the foundational values they reflect — the discretionary decision-maker is required to proportionatelybalance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives thatshe or he is obliged to pursue. [5] In this case, the Minister’s decision reflected the fundamental assumption that any program taught from a religiousperspective could not be an alternative to the ERC Program and that the religious school could not teach even its own religion from itsown perspective. [6] For the reasons that follow, in my view prescribing to Loyola how it is to explain Catholicism to its studentsseriously interferes with freedom of religion, while representing no significant benefit to the ERC Program’s objectives.

In a context likeQuebec’s, where private denominational schools are legal, this represents a disproportionate, and therefore unreasonable interferencewith the values underlying freedom of religion of those individuals who seek to offer and who wish to receive a Catholic education atLoyola. On the other hand, I see no significant impairment of freedom of religion in requiring Loyola to offer a course that explains thebeliefs, ethics and practices of other religions in as objective and neutral a way as possible, rather than from the Catholic perspective.

Background [7] Loyola High School is a private, English-speaking Catholic high school for boys. It is highly respected, and hasbeen administered by the Jesuit Order since the school’s founding in the 1840s. Its mission, teaching, and characteristics are Jesuit.

Most of the students at Loyola come from Catholic families. [8] Until relatively recently, public education in Quebec was entirely confessional in nature and public schools wereorganized along denominational lines, under the complete control of the Catholic and Protestant Committees of the Council of PublicInstruction, who “ran their respective schools with little or no government interference”: Spencer Boudreau, “From Confessional toCultural: Religious Education in the Schools of Québec” (2011), 38 Religion & Education 212, at p. 213. [9] With the Quiet Revolution in the 1960s, the state took charge of educational institutions formerly controlled byreligious communities.

By 2000, public schools were fully secularized and denominational schools no longer had official status in thepublic system. They were, however, permitted to operate as private schools: see S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, at para. 12. [10] The Ethics and Religious Culture (ERC) Program, which is the most recent step in the process of secularization ofthe school system, replaced all the remaining Catholic and Protestant religious programs with a secularized study of religion and ethics.

It became mandatory for all schools, public and private, at the start of the 2008-2009 school year. At the secondary level, the program isrequired to be taught in four of the five years of school: Basic school regulation for preschool, elementary and secondary education,CQLR, c. I-13.3, r. 8, ss. 23 and 23.1. [11] The ERC Program has two key stated objectives: the “recognition of others” and the “pursuit of the common good”. The first objective is based on the principle that all people possess equal value and dignity. The second seeks to foster shared values ofhuman rights and democracy.

By imposing this program in its schools, Quebec seeks to inculcate in all students openness to diversityand respect for others. [12] In order to fulfil these objectives, the ERC Program has three components which seek to develop three competenciesamong students: the ability to understand “religious culture”, which includes the study of world religions; the ability to reflect on ethicalquestions; and the ability to engage in dialogue.

The three competencies are intended to support and reinforce one another. [13] The purpose of the religious culture component is to help students understand the main elements of religion byexploring the socio-cultural contexts in which different religions take root and develop. The program takes a cultural andphenomenological rather than a doctrinal approach to the study of religions. Because of their role in Quebec’s history, it accords aprominent role to Catholicism and Protestantism, but teachers are also required to discuss Judaism, Islam, Hinduism, Buddhism, andAboriginal belief systems.

[ 14 ] The purpose of the ethics component is to encourage students to critically reflect on their own ethical conduct and that of others, as well as on the values and norms that different religious and social groups adopt to guide their behaviour. [ 15 ] The purpose of the dialogue component, which is integrated with the ethics and religious culture components, is to help students develop the skills to interact respectfully with people of different beliefs in a diverse society, and to understand the impact of their behaviour on the broader community. [ 16 ] The ERC Program provides a framework that teachers must utilize to help students develop these competencies, but leaves teachers with considerable flexibility in developing their own lessons and structuring their course to convey this content. [ 17 ] The major world religions are taught through themes.

Students explore the elements of religious traditions, including different representations of divinity, creation stories, and religious rites, rules and duties. They also discuss Quebec’s religious heritage. They then learn about the founding and development of different world religions, and examine the ways that different traditions and philosophical texts have approached questions about divinity, the meaning of life and death, and the human condition generally.

And they draw on literature to explore different kinds of religious experiences, methodologies for transmitting religion, and ways religious experiences shape people and communities. [ 18 ] Students develop competency in ethics by exploring themes such as freedom, autonomy, and tolerance, among others.

They develop competency in dialogue by learning about different forms of dialogue; strategies for developing, explaining or challenging a point of view; and processes and patterns of thought that can undermine dialogue, such as stereotyping and prejudice. [ 19 ] The orientation of the ERC Program is strictly secular and cultural; it requires teachers to take a “professional stance” of objectivity and impartiality. That means that they are not to advance the truth of a particular belief system or attempt to influence their students’ beliefs.

Instead, their role is to foster awareness of diverse values, beliefs and cultures. Teachers in the program are therefore expected to act as mediators to help their students develop the critical capacity to understand, articulate and question different points of view. [ 20 ] The ERC program has already been scrutinized — and found to be constitutional — by this Court in the context of the public school system.

In S.L. , a group of parents claimed that the program would confuse their children and interfere with their religious training because it exposed them to information about various world religions from a secular perspective. They argued that this amounted to a violation of s. 2 (

a) of the Charter . [ 21 ] The Court rejected their claim and affirmed the constitutionality of the ERC Program as a mandatory component of the curriculum in public schools. In her reasons, Justice Deschamps observed that [p]arents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society.

The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(

a) of the Canadian Charter and of s. 3 of the Quebec Charter . [ S.L. , at para. 40] [ 22 ] The same Ethics and Religious Culture Program is now before us in the context of a private denominational school. Like their counterparts in the public school system, the core curriculum of private denominational schools is regulated by the province and is compulsory: Education Act , CQLR, c. I-13.3, ss. 447 and 459 ; Basic school regulation for preschool, elementary and secondary education , ss. 23 and 23.1 ; An Act respecting private education , CQLR, c. E-9.1, ss. 25 and 32 . [ 23 ] A private school is entitled to provide an alternative but “equivalent” program if the Minister approves its content.

Section 22 of the Regulation respecting the application of the Act respecting private education , CQLR, c. E-9.1, r. 1, sets out the Minister’s authority to grant an exemption where the school in question proposes to teach an alternative program which the Minister decides is sufficiently similar to the compulsory curriculum. It states: 22.

Every institution shall be exempt from the [compulsory curriculum] provided the institution dispenses programs of studies which the Minister of Education, Recreation and Sports judges equivalent. [ 24 ] On March 30, 2008, approximately five months before the ERC Program became mandatory across the Quebec school system, Loyola’s Principal and Director wrote to the Minister to request an exemption from the program for the upcoming school year.

They claimed that the program was incompatible with Loyola’s Catholic mission and convictions and proposed an alternative program that placed greater emphasis on Catholic beliefs and ethics. [ 25 ] In response to the Minister’s request for additional information, Loyola sent the Minister a document setting out a general description of its proposed alternative program. The document presents the religious and ethical teachings of the Catholic Church as a central component of the proposed alternative program and as the basis upon which students should learn about other religions.

Although it provides an opportunity to discuss major world religions and different ethical positions, the normative core of Loyola’s proposed curriculum is the doctrine and belief system of the Catholic Church. Catholic doctrine and ethics would be emphasized early and taught in great depth, and would frame the discussion of other religions and ethical approaches.

The third year of the program, for example — a year in which Loyola’s proposed program would focus primarily on teaching its students about ethics — is described as a course on “Catholic Moral Teaching” designed to “offer a Catholic vision for answering the question ‘What kind of person am I becoming, and what kind of person do I want to become?’ It centers on Jesus as the model of full humanness”.

In the fourth year of the program, which focuses on the world religions component, [t]he course presents a concise history of the Catholic Church, covering the significant events and doctrines that have shaped the course of Catholic thought and action over the past millennia. Beginning with the Apostolic Age, it follows the rise of Christendom through the High Middle Ages to the Reformation and into the Twentieth Century. Topics include the early fathers of the Church, scholars, heresies,

councils, popes and saints and concludes with an exploration of the current challenges that we face in the post-modern world. . . . As the course progress[es] through history, a variety of Religions are discussed . . . [i]n particular, the interaction between the Catholic Church and the various other religions is explored.

Loyola’s proposed course description did not address the dialogue competency that is required as part of the ERC Program. [ 26 ] In a letter dated August 7, 2008, the Minister denied Loyola’s request for an exemption from teaching the ERC curriculum, seeing Loyola’s proposed approach as essentially a request for a departure from teaching the ERC subject altogether, rather than for an exemption based on a proposed equivalent course. [ 27 ] Loyola sent a follow-up request to the Minister on August 25, 2008, attempting to demonstrate how its proposed alternative program met the objectives of the ERC Program.

In its view, the religious nature of the school prevented it from teaching Catholic beliefs or other religions from a “neutral” or detached perspective. Although its program would be taught from a Catholic perspective, it would offer its students a deeper and more thorough understanding of world religions by going beyond history and external customs to engage seriously with their fundamental beliefs.

It also affirmed its commitment to teaching its students to [ translation ] “think critically, to obtain information, to be aware of the principal ethical issues and to examine popular beliefs and practices”, but from a Catholic perspective. [ 28 ] This second request was also denied by the Minister. In a letter dated November 13, 2008, a department official writing on the Minister’s behalf expressed concern that Loyola’s proposed program was faith-based, rather than cultural. The letter also mentioned what were seen as defects in the development of competency in dialogue and in the role of the teacher.

The letter set out the following six bases for the Minister’s decision to deny Loyola’s request for an exemption: [ translation ] • The two main goals of the Ethics and Religious Culture program are recognition of others and pursuit of the common good. The approach to and the conception of the common good developed in the Ethics and Religious Culture program [and those] proposed by Loyola High School are very different. The approach advocated in the Ethics and Religious Culture program is cultural, not faith-based. According to the

summary of the program proposed by Loyola High School and submitted to the department for evaluation, the program is based on the Catholic faith and its main goal is the transmission of Catholic beliefs and convictions. It encompasses a conception of others, but once again from a Christian Catholic perspective. • Again according to the

summary of the program submitted to the department for evaluation, it appears that, contrary to the Ethics and Religious Culture program, the Loyola High School program does not lead the student to reflect on the common good, or on ethical issues, but rather to adopt the Jesuit perspective of Christian service. • The ethics component of the Ethics and Religious Culture program does not offer the students moral education.

It takes into consideration elements of religious culture, whereas, according to the information transmitted to the department, the ethics aspect of the program proposed by Loyola High School focuses on the teaching of moral reference points laid down by the Catholic Church. • According to the

summary of the program submitted to the department for evaluation, the program proposed by Loyola High School does not provide for the development of competence in the practice of dialogue within the meaning of the Ethics and Religious Culture program. • The training in religious culture of the Ethics and Religious Culture program is aimed at an enlightened comprehension of the many expressions of the religious experience present in Québec culture and in the world. Each religious tradition is observed individually without comparison or reference to another tradition. According to the

summary of the program proposed by Loyola High School and transmitted to the department for evaluation, the program does not meet the requirements for the Ethics and Religious Culture program in terms of religious culture, as religions are studied in connection with the Catholic religion. • Again according to the

summary of the program submitted to the department for evaluation, the program proposed by Loyola High School is distinguished from the Ethics and Religious Culture program in terms of the teacher’s role.

In the Ethics and Religious Culture program, the teacher’s foremost responsibility is to assist and guide the students in their reflections, whereas according to the information provided the department, the teacher of the program proposed by Loyola High School seems to have to teach the foundations of the religion and universe of Jesuit Catholic beliefs. [ 29 ] Loyola brought an application for judicial review of the Minister’s decision.

In its view, the “normative pluralism” that underpinned the entire ERC Program was a violation of freedom of religion because it was incompatible with Loyola’s character as a Catholic institution. After hearing additional testimony from Loyola about its proposed alternative program, the application judge

concluded that the Minister’s decision was incorrect, and constituted an unjustified violation of Loyola’s right to religious freedom. [30] On appeal, the Quebec Court of Appeal unanimously overturned the decision. Applying this Court’s decision inDoré, the Court of Appeal held that a reasonableness standard should be applied in assessing how the Minister balanced the Charterrights at stake.

It concluded that the ERC Program did not interfere with religious freedom in any substantial manner, and that theMinister had therefore exercised her discretion in a reasonable manner. [31] Before this Court, Loyola took a different position than in the prior proceedings. Loyola had previously asserted thatthe entire orientation of the ERC Program represented an impairment of religious freedom on the basis that discussing any religionthrough a neutral lens would be incompatible with Catholic beliefs.

Its revised position before us was that it did not object to teachingother world religions objectively in the first component which focuses on “understanding religious culture”. But it still wanted to be ableto teach the ethics of other religious traditions from the perspective of the Catholic religion rather than in an objective and neutral way. Moreover, it continued to assert the right to teach Catholic doctrine and ethics from a Catholic perspective.

Loyola took no position onthe perspective from which it would seek to teach the dialogue component, which would be integrated with the other two components ofits proposed alternative program. The position of the Minister before this Court, however, remained the same as it had been in the priorproceedings, namely, that in no aspect of the ERC Program would Loyola be permitted to teach from a Catholic perspective. It followsthat Loyola’s change of position has little impact on the analysis.

The question instead is whether the Minister’s unchanged position, asreflected in her decision concerning the equivalency of Loyola’s proposed program, interferes with the relevant Charter protections nomore than is necessary given the statutory objectives she was required to pursue. Analysis [32] Loyola does not challenge the Minister’s statutory authority to impose curricular requirements, but rather herdiscretionary decision to deny Loyola an exemption from the ERC Program.

The reasonableness of the Minister’s decision depends onwhether it reflected a proportionate balance between the statutory mandate to grant exemptions only when a proposed alternativeprogram is “equivalent” to the prescribed curriculum, based on the ERC Program’s goals of promoting tolerance and respect fordifference, and the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholiceducation. [33] Loyola, a non-profit corporation constituted under

Part III of the Quebec Companies Act, CQLR, c. C-38, alsoargued that its own religious freedom had been violated by the decision. I recognize that individuals may sometimes require a legalentity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as thetransmission of their faith: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 , [2009] 2 S.C.R. 567, at para. 181;Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 , [2004] 2 S.C.R. 650. Ido not believe it is necessary, however, to decide whether corporations enjoy religious freedom in their own right under s. 2(

a) of theCharter or s. 3 of the Charter of human rights and freedoms, CQLR, c. C-12 (the Quebec Charter), in order to dispose of this appeal. [34] In this case Loyola, as an entity lawfully created to give effect to religious belief and practice, was denied a statutoryexemption from an otherwise mandatory regulatory scheme. As the subject of the administrative decision, Loyola is entitled to apply forjudicial review and to argue that the Minister failed to respect the values underlying the grant of her discretion as part of its challenge ofthe merits of the decision. In my view, as a result, it is not necessary to decide whether Loyola itself, as a corporation, enjoys the benefitof s. 2(

a) rights, since the Minister is bound in any event to exercise her discretion in a way that respects the values underlying the grantof her decision-making authority, including the Charter-protected religious freedom of the members of the Loyola community who seekto offer and wish to receive a Catholic education: Chamberlain v.

Surrey School District No. 36, 2002 SCC 86 , [2002] 4 S.C.R.710, at para. 71. [35] This case, as the Court of Appeal noted and as the parties before this Court accepted, squarely engages theframework set out in Doré, which applies to discretionary administrative decisions that engage the Charter.

Doré requires administrativedecision-makers to proportionately balance the Charter protections —values and rights — at stake in their decisions with the relevantstatutory mandate: Doré, at para. 55. [36] As Aharon Barak explained, the purpose of a constitutional right is the realization of its constitutional values:Human Dignity: The Constitutional Value and the Constitutional Right (2015), at p. 144.

In the Doré analysis, Charter values — thosevalues that underpin each right and give it meaning — help determine the extent of any given infringement in the particularadministrative context and, correlatively, when limitations on that right are proportionate in light of the applicable statutory objectives:Hutterian Brethren, at para. 88; Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d)391, at pp. 403-4. [37] On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision isreasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate: Doré,at para. 57.

Reasonableness review is a contextual inquiry: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 ,[2012] 1 S.C.R. 5, at para. 18. In the context of decisions that implicate the Charter, to be defensible, a decision must accord with thefundamental values protected by the Charter. [38] The Charter enumerates a series of guarantees that can only be limited if the government can justify those limitationsas proportionate.

As a result, in order to ensure that decisions accord with the fundamental values of the Charter in contexts whereCharter rights are engaged, reasonableness requires proportionality: Doré, at para. 57.

As Aharon Barak noted, “Reasonableness in [astrong] sense strikes a proper balance among the relevant considerations, and it does not differ substantively from proportionality”:“Proportionality (2)”, in The Oxford Handbook of Comparative Constitutional Law (2012), Michel Rosenfeld and András Sajó, eds.,738, at p. 743. [39] The preliminary issue is whether the decision engages the Charter by limiting its protections. If such a limitationhas occurred, then “the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the

decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”: Doré,at para. 57. A proportionate balancing is one that gives effect, as fully as possible to the Charter protections at stake given the particularstatutory mandate. Such a balancing will be found to be reasonable on judicial review: Doré, at paras. 43-45. [40] A Doré proportionality analysis finds analytical harmony with the final stages of the Oakes framework used toassess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing. Both R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, and Doré require that Charter protections are affected as little as reasonably possible in light of the state’sparticular objectives: see RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 160.As such, Doré’s proportionality analysis is a robust one and “works the same justificatory muscles” as the Oakes test: Doré, at para. 5. [41] The Doré analysis is also a highly contextual exercise.

As under the minimal impairment stage of the Oakesanalysis, under Doré there may be more than one proportionate outcome that protects Charter values as fully as possible in light of theapplicable statutory objectives and mandate: RJR-MacDonald, at para. 160. [42] Doré’s approach to reviewing administrative decisions that implicate the Charter, including those of adjudicativetribunals, responds to the diverse set of statutory and procedural contexts in which administrative decision-makers operate, and respectsthe expertise that these decision-makers typically bring to the process of balancing the values and objectives at stake on the particularfacts in their statutory decisions: para. 47; see also David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues AfterMultani” (2006), 21 N.J.C.L. 127, at p. 149; and Stéphane Bernatchez, “Les rapports entre le droit administratif et les droits et libertés: larévision judiciaire ou le contrôle constitutionnel?” (2010), 55 McGill L.J. 641.

As Lorne Sossin and Mark Friedman have observed intheir cogent article: While the Charter jurisprudence can shed light on the scope of Charter values, it remains for each tribunal to determine . . . how tobalance those values against its policy mandate.

For example, while personal autonomy may be a broadly recognized Charter value, itwill necessarily mean something different in the context of a privacy commission than in the context of a parole board. [p. 422] [43] The context before us — state regulation of religious schools — poses the question of how to balance robustprotection for the values underlying religious freedom with the values of a secular state. Part of secularism, however, is respect forreligious differences.

A secular state does not — and cannot — interfere with the beliefs or practices of a religious group unless theyconflict with or harm overriding public interests. Nor can a secular state support or prefer the practices of one group over those ofanother: Richard Moon, “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev.497, at pp. 498-99. The pursuit of secular values means respecting the right to hold and manifest different religious beliefs.

A secularstate respects religious differences, it does not seek to extinguish them. [44] Through this form of neutrality, the state affirms and recognizes the religious freedom of individuals and theircommunities. As Prof. Moon noted: Underlying the [state] neutrality requirement, and the insulation of religious beliefs and practices from political decision making, is aconception of religious belief or commitment as deeply rooted, as an element of the individual’s identity, rather than simply a choice orjudgment she or he has made. Religious belief lies at the core of the individual’s worldview.

It orients the individual in the world,shapes his or her perception of the social and natural orders, and provides a moral framework for his or her actions. Moreover, religiousbelief ties the individual to a community of believers and is often the central or defining association in her or his life. The individualbeliever participates in a shared system of practices and values that may, in some cases, be described as “a way of life”.

If religion is anaspect of the individual’s identity, then when the state treats his or her religious practices or beliefs as less important or less true than thepractices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual’s viewsand values, it is denying her or his equal worth. [Footnote omitted; p. 507.] [45] Because it allows communities with different values and practices to peacefully co-exist, a secular state also supportspluralism.

The European Court of Human Rights recognized the relationship between religious freedom, secularism and pluralism inKokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A, a case about a Jehovah’s Witness who had been repeatedlyarrested for violating Greece’s ban on proselytism. Concluding that the claimant’s

Article 9 rights to religious freedom had beenviolated, the court wrote: As enshrined in

Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within themeaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believersand their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralismindissociable from a democratic society, which has been dearly won over the centuries, depends on it. [p. 17] See also Metropolitan Church of Bessarabia v.

Moldova, No. 45701/99, ECHR 2001-XII. [46] This does not mean that religious differences trump core national values. On the contrary, as this Court observed inBruker v. Marcovitz, 2007 SCC 54 , [2007] 3 S.C.R. 607: Not all differences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their expression are arbitrary. Determining when the assertion of a right based on difference must yield to a more pressing public interest is a complex, nuanced, fact-specific exercise that defies bright-line application.

It is, at the same time, a delicate necessity for protecting the evolutionary integrityof both multiculturalism and public confidence in its importance. [para. 2] Or, as the Bouchard-Taylor report observed: A democratic, liberal State cannot be indifferent to certain core values, especially basic human rights, the equality of all citizens beforethe law, and popular sovereignty. These are the constituent values of our political system and they provide its foundation.

(Gérard Bouchard and Charles Taylor, Commission de consultation sur les pratiques d’accommodement reliées aux différencesculturelles, Building the Future: A Time for Reconciliation (2008), at p. 134) [47] These shared values — equality, human rights and democracy — are values the state always has a legitimate interestin promoting and protecting. They enhance the conditions for integration and points of civic solidarity by helping connect us despite ourdifferences: Jürgen Habermas, “Religion in the Public Sphere” (2006), 14 Eur. J. of Philos. 1, at p. 5. This is what makes pluralismwork.

As McLachlin J. noted in Adler v. Ontario, (SCC), [1996] 3 S.C.R. 609 (dissenting in part), “[a] multiculturalmultireligious society can only work . . . if people of all groups understand and tolerate each other”: para. 212.

Religious freedom musttherefore be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity anddiversity, promoting equality, and ensuring the vitality of a common belief in human rights. [48] The state, therefore, has a legitimate interest in ensuring that students in all schools are capable, as adults, ofconducting themselves with openness and respect as they confront cultural and religious differences.

A pluralist, multiculturaldemocracy depends on the capacity of its citizens “to engage in thoughtful and inclusive forms of deliberation amidst, and enriched by,”different religious worldviews and practices: Benjamin L. Berger, “Religious Diversity, Education, and the ‘Crisis’ in State Neutrality”(2014), 29 C.J.L.S. 103, at p. 115. [49] With this context in mind, we turn to assessing the Minister’s decision in order to determine whether itproportionately balanced religious freedom with the statutory objectives of the ERC Program. [50] I begin with an analysis of the statutory objectives at stake.

Under s. 22 of the Regulation respecting the applicationof the Act respecting private education, the Minister is required to grant exemptions from the mandatory program when a school offersan “equivalent” program. The starting point for the analysis of the statutory objectives is interpreting the meaning of “equivalent”,taking into account the words of the provision in this regulatory context, the scheme of the Act, the object of the Act, and the intention ofParliament: Elmer A.

Driedger, The Construction of Statutes (1974), at p. 67; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, at para. 21. [51] This regulatory context concerns the minimum educational attainments required of students in private and publicschools across Quebec. Quebec seeks to ensure that students who graduate with a provincially approved secondary school diplomademonstrate the knowledge and competencies they need to be productive members of society, and that schools granting secondary schooldiplomas facilitate the realization of these skills.

In particular, the Minister has a statutory responsibility to adopt measures that willcontribute to individuals’ education and development, and to ensure that educational institutions offer services of sufficient quality: AnAct respecting the Ministère de l’Éducation, du Loisir et du Sport, CQLR, c. M-15, s. 2. [52] To this end, under the Basic school regulation for preschool, elementary and secondary education, Quebecprescribes the compulsory subjects that must be taught each year and sets out minimum requirements for the instructional hours to beaccorded to each subject: ss. 23 and 23.1.

The Minister also has the power to set out core course objectives and content, establishcurricula to teach these core subjects, as well as allow for optional content that can be customized according to the needs of students:Education Act, s. 461. The mandatory curricula must be taught in private as well as public schools:

An Act respecting private education,ss. 25 and 32. Finally, the regulatory scheme also requires all private educational institutions to hold a permit to operate, which enablesthe Minister to ensure that all private schools are complying with the general regulatory framework it has set out:

An Act respectingprivate education, s. 10. [53] The power to grant exemptions from the mandatory curriculum in cases where a school offers an “equivalent”program is part of the Minister’s broader regulatory role of ensuring that basic educational standards are met by schools and studentsalike. As a result, in order to be consistent with the scheme as a whole, the Minister’s

interpretation of which programs are “equivalent”should take into account the objectives each course seeks to meet and the competencies it seeks to inculcate in students. [54] At the same time, however, there would be little point in offering an exemption if, in order to receive it, the proposedalternative program had to be identical to the mandatory program in every way. The exemption exists in a regulatory scheme thatanticipates and sanctions the existence of private denominational schools. And the

preamble to

An Act respecting the Ministère del’Éducation, du Loisir et du Sport, which sets out the Minister’s powers, recognizes that parents have the right to choose establishmentsthat, according to their own convictions, best respect the rights of their children. In order to respect values of religious freedom in thiscontext, as well as to cohere with the larger regulatory scheme, a reasonable

interpretation of the process for granting exemptions fromthe mandatory curriculum would leave at least some room for the religious character of those schools. The regulation providing for suchexemptions would otherwise operate to prevent what the Act respecting private education itself allows — a private school beingdenominational. [55] Although it prescribes some course content, the documentation describing the ERC Program does not set outdetailed lesson plans that teachers are required to cover.

The program is instead structured to be flexible and thematic, providing only ageneral framework to guide students in developing competencies in ethics, dialogue and religious culture, in service of the two keyobjectives of the program: the recognition of others and the pursuit of the common good. [56] Given the highly flexible nature of the ERC Program and its heavy emphasis on these two objectives, as well as thecontext of the regulatory scheme as a whole, it is unreasonable to interpret equivalence as requiring a strict adherence to specific coursecontent, rather than in terms of the ERC’s program objectives generally.

Using the program’s objectives as the marker for equivalenceleaves the necessary flexibility for the possibility of acceptable differences between an alternative program and the ERC Program,including differences that can accommodate religious freedom. As long as the alternative program substantially realizes the objectives ofthe ERC Program, it should be considered equivalent.

The Minister’s task was therefore to arrive at a decision that proportionatelybalanced the realization of the ERC Program’s objectives of promoting respect for others and openness to diversity, with respect forCharter-protected religious freedom in this context. [57] The information that was before the Minister when she made her decision about Loyola’s proposed alternative

program consisted of two letters requesting the exemption and a three-page proposed curriculum document. Based on these documents,the Minister identified a number of key differences between the two programs. The crucial difference, however, was the religious natureof Loyola’s program. Loyola proposed an alternative program that would focus on Catholic precepts and ethics, and discuss other beliefsystems from a Catholic perspective. Its main goal, as the Minister’s representative noted in her letter dated November 13, 2008, wasthe “transmission of Catholic beliefs and convictions”.

As this letter to Loyola makes clear, in the Minister’s view, a program thatdeparts in any way from the ERC Program’s posture of strict neutrality, even partially, cannot achieve the state’s objectives of promotingrespect for others and openness to diversity. This was also the position that Quebec took before this Court. [58] The Minister’s decision necessarily engages religious freedom. The starting point, and the inspiration for most ofthis Court’s subsequent jurisprudence about religious freedom, is R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R.295, where Dickson J. (as he then was), writing for the majority, articulated his visionary approach to freedom of religion: The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declarereligious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or byteaching and dissemination. But the concept means more than that. Freedom can primarily be characterized by the absence of coercion or constraint. . . .

Coercion includes not only such blatant forms ofcompulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control whichdetermine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercionand constraint, and the right to manifest beliefs and practices.

Freedom means that, subject to such limitations as are necessary toprotect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a waycontrary to his beliefs or his conscience. What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons,be imposed upon citizens who take a contrary view.

The Charter safeguards religious minorities from the threat of “the tyranny of themajority”. [Emphasis added; pp. 336-37.] [59] Justice Dickson’s formulation of religious freedom is founded on the idea that no one can be forced to adhere to orrefrain from a particular set of religious beliefs. This includes both the individual and collective aspects of religious belief: HutterianBrethren, at paras. 31, 130 and 182; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, at p. 781.

In thewords of Justice LeBel: “Religion is about religious beliefs, but also about religious relationships” (Hutterian Brethren, at para. 182). [60] Religious freedom under the Charter must therefore account for the socially embedded nature of religious belief,and the deep linkages between this belief and its manifestation through communal institutions and traditions: Victor Muñiz-Fraticelli andLawrence David, “Whence a nexus with religion? Religious institutionalism in a Canadian context”, forthcoming, at p. 2; Dieter Grimm,“Conflicts Between General Laws and Religious Norms” (2009), 30 Cardozo L.

Rev. 2369, at p. 2373. To fail to recognize thisdimension of religious belief would be to “effectively denigrate those religions in which more emphasis is placed on communal worshipor other communal religious activities”: Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights heldby Groups (2011), at p. 78.

See also Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995), at p. 105. [61] These collective aspects of religious freedom — in this case, the collective manifestation and transmission ofCatholic beliefs through a private denominational school — are a crucial part of Loyola’s claim. In S.L., this Court held that theimposition of the ERC Program in public schools did not impose limits on the religious freedom of individual students and parents.

Thiscase, however, can be distinguished from S.L. because Loyola is a private religious institution created to support the collective practice ofCatholicism and the transmission of the Catholic faith. The question is not only how Loyola is required to teach about other religions,but also how it is asked to teach about the very faith that animates its character and the comparative relationship between Catholicismand other faiths.

The Minister’s decision therefore demonstrably interferes with the manner in which the members of an institutionformed for the very purpose of transmitting Catholicism, can teach and learn about the Catholic faith. This engages religious freedomprotected under s. 2(

a) of the Charter. [62] I agree with Loyola that the Minister’s decision had a serious impact on religious freedom in this context.

To tell aCatholic school how to explain its faith undermines the liberty of the members of its community who have chosen to give effect to thecollective dimension of their religious beliefs by participating in a denominational school. [63] As Justice Dickson observed in Big M Drug Mart, “whatever else freedom of conscience and religion may mean, itmust at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specificreligious practice for a sectarian purpose” (p. 347).

Although the state’s purpose here is secular, requiring Loyola’s teachers to take aneutral posture even about Catholicism means that the state is telling them how to teach the very religion that animates Loyola’sidentity. It amounts to requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its ownunderstanding of Catholicism. [64] It also interferes with the rights of parents to transmit the Catholic faith to their children, not because it requiresneutral discussion of other faiths and ethical systems, but because it prevents a Catholic discussion of Catholicism.

This ignores the factthat an essential ingredient of the vitality of a religious community is the ability of its members to pass on their beliefs to their children,whether through instruction in the home or participation in communal institutions. [65] This principle has received wide recognition in international human rights instruments. Article 18(4) of theInternational Covenant on Civil and Political Rights, 999 U.N.T.S. 171, for example, protects the rights of parents to guide theirchildren’s religious upbringing:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians toensure the religious and moral education of their children in conformity with their own convictions. [66] Though not relied on by Loyola in this case, s. 41 of the Quebec Charter also protects the rights of parents to guidetheir children’s religious upbringing: Parents or the persons acting in their stead have a right to give their children a religious and moral education in keeping with theirconvictions and with proper regard for their children’s rights and interests. [67] Ultimately, measures which undermine the character of lawful religious institutions and disrupt the vitality ofreligious communities represent a profound interference with religious freedom. [68] There is, on the other hand, insufficient demonstrable benefit to the furtherance of the state’s objectives in requiringLoyola’s teachers to teach Catholicism from a neutral perspective.

In her letter dated November 13, 2008 explaining her decision todeny Loyola’s exemption, the Minister sets out her reasons for rejecting Loyola’s proposed alternative curriculum: [translation] • . . .

The approach to and the conception of the common good developed in the Ethics and Religious Culture program [and those]proposed by Loyola High School are very different. . . . [T]he program proposed by Loyola . . . is based on the Catholic faith and itsmain goal is the transmission of Catholic beliefs and convictions. • . . . the ethics aspect of the program proposed by Loyola . . . focuses on the teaching of moral reference points laid down by theCatholic Church. • . . . the program does not meet the requirements for the Ethics and Religious Culture program in terms of religious culture, asreligions are studied in connection with the Catholic religion. • . . . the . . . program does not lead the student to reflect on the common good, or on ethical issues, but rather to adopt the Jesuitperspective of Christian service.

These passages reflect the central problems with the Minister’s decision: it treats teaching any part of the proposed alternative programfrom a Catholic perspective as necessarily inimical to the state’s core objectives in imposing the ERC Program and it gives no weight tothe values of religious freedom engaged by the decision. There is, in short, no balancing of freedom of religion in relation to thestatutory objectives.

The result is a disproportionate outcome that does not protect Charter values as fully as possible in light of thosestatutory objectives. [69] In the Quebec context, where private denominational schools are authorized, forcing a religious school to teach itsown religion from a non-religious perspective does not assist in realizing the ERC Program’s basic curricular goals of encouragingamong students respect for others and openness to others. The Minister’s decision suggests that engagement with an individual’s ownreligion on his or her own terms can simply be presumed to impair respect for others.

This assumption runs counter to the objectives ofthe regulatory scheme as a whole and it has a disproportionate impact on the values underlying religious freedom in this context. Thisnecessarily renders the Minister’s decision unreasonable. [70] The disproportionate nature of this decision is reinforced by the fact that the Minister’s decision effectively prohibitsLoyola from teaching about Catholic ethics from a Catholic perspective. Catholic doctrine and Catholic ethics are simply too intertwinedto make it possible to teach one from a religious perspective and the other neutrally.

More to the point, there is no reason to distinguishbetween the two

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