2012 QCCA 2139, 2012 QCCA 2139

Unofficial English Translation Québec (Procureur général) c. Loyola High School 2012 QCCA 2139 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020854-105 (500-17-045278-085) DATE: December 4, 2012 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. JACQUES R. FOURNIER, J.A. ATTORNEY GENERAL OF QUÉBEC APPELLANT – Defendant v. LOYOLA HIGH SCHOOL JOHN ZUCCHI RESPONDENTS – Plaintiffs JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Gérard Dugré), rendered on June 18, 2010, that quashed a decision by the Minister of Education, Recreation and Sports, declared the respondent Loyola High School exempt from teaching the compulsory Ethics and Religious Culture (ERC) program established by the Minister, and authorized it to substitute the ERC program with its own program; [ 2 ] For the reasons of Fournier, J.A., with which Hilton and Wagner, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal ; [ 4 ] DISMISSES the motion to institute proceedings filed by Loyola and Zucchi; [ 5 ] UPHOLDS the decision of the Minister; [ 6 ] Each party to pay its own costs both here and below.

ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. JACQUES R. FOURNIER, J.A. Mtre Benoit Boucher Mtre Caroline Renaud General Directorate of Legal and Legislative Affairs Bernard, Roy (Justice Quebec) For the appellant

Mtre Mark Phillips Mtre Jacques S. DarcheBorden Ladner GervaisFor the respondents Date of hearing: May 7, 2012 REASONS OF FOURNIER, J.A. [7] This is an appeal from a judgment of the Superior Court, District of Montreal, quashing a decision by the Minister ofEducation, Recreation and Sports and declaring the respondent Loyola High School exempt from teaching the compulsory Ethics andReligious Culture (ERC) program established by the Minister and authorizing it to substitute its own program for the ERC program. BACKGROUND [8] Loyola is a Roman Catholic private high school.

This fact alone does not confer any particular status on the school, nor is anyparticular status conferred upon it through legislation. More precisely, it is a denominational educational institution managed by theJesuit order and a legal person constituted under the laws of Quebec. Rob Brennan is its president and Paul Donovan is its principal. [9] The respondent John Zucchi (Zucchi) is the father of a child who was studying in Secondary Three when the action was filed inSuperior Court. He is a practicing Catholic. [10] The appellant, the Attorney General of Quebec (AGQ), represents the Minister.

For the purposes of the dispute, it is enough tostate that the Minister is charged with applying the statutes governing elementary and secondary education in Quebec. [11] The program at issue is the ERC course. It is a compulsory subject matter that must be taught at all levels of elementary andsecondary education, with the exception of Secondary Three. [12] The program revolves around two objectives or goals: the recognition of others and the pursuit of a common good.

In short, theERC program tries to instill in students such principles and values as respect for others and democracy and teach them about building acommon popular culture that takes into account diversity and how to better live together in society. The program aims to develop threecompetencies: how to reflect on ethical questions, demonstrate an understanding of the phenomenon of religion, and engage in dialogue.Thus, in Secondary Cycle One, the ethics competency aims to make the students aware of the notions of freedom and social order.

Thecompetency in religious culture aims to make the students aware of Quebec's religious heritage, and the competency regarding dialogueaims to establish conditions that are conducive thereto. [13] Setting up the ERC course was one step in the process of making Quebec schools non-denominational. It would be useful hereto refer to the background explained by Deschamps J. in the recent judgment S.L. v. Commission scolaire des Chênes:[1] [10] The place of religion in civil society has been a source of public debate since the dawn of civilization.

The gradual separation ofchurch and state in Canada has been part of a broad movement to secularize public institutions in the Western World (M. H. Ogilvie,Religious Institutions and the Law in Canada (3rd ed. 2010), at pp. 26 and 30; see also Congrégation des témoins de Jéhovah de St-Jérôme/Lafontaine v. Lafontaine (Village), 2004 SCC 48 , 2004 SCC 48, [2004] 2 S.C.R. 650, at paras. 67–68, per LeBel J.).Religious neutrality is now seen by many Western states as a legitimate means of creating a free space in which citizens of variousbeliefs can exercise their individual rights (see J.

Woehrling, “La place de la religion dans les écoles publiques du Québec” (2007), 41R.J.T. 651; D. Grimm, “Conflicts Between General Laws and Religious Norms” (2009), 30 Cardozo L. Rev. 2369). [11] The religious portrait of our society is a key factor in the adoption of a policy of neutrality, not only in Quebec but also elsewherein Canada. As a result of globalization of trade and increased individual mobility, the diversity of religious beliefs in Canada hasincreased sharply over the past decades.

The 2001 Census of Canada listed approximately 95 religious groups that were large enough tobe considered separate religious institutions for the purposes of statistical records. Furthermore, more than 23 percent of Canadiansdeclared that they were members of non-Christian religions or reported no religious identity at all (Ogilvie, at pp. 55-56). [12] The creation of the Ministère in 1964 meant that the Quebec government took charge of public education, an area which hadbeen dominated by religious communities up to that time.

On February 5, 1964, following the Parent Report (1963), which hadrecommended an increase in public investment in education, the Legislative Assembly passed the Act to establish the Department ofEducation and the Superior Council of Education, S.Q. 1963-64, c. 15. During the first 30 years of the new department’s existence, thedenominational school system remained in place. On April 12, 1995, the Quebec government created the Commission for the EstatesGeneral on Education (Order in Council 511-95, (1995) 127 G.O. II, 1960). The Commission’s members recommended a far-reachingreview of education programs.

In 1997, the addition of s. 93A to the Constitution Act, 1867 made possible the abolishment ofdenominational school boards in Quebec and the reorganization of Quebec’s school boards on the basis of language (ConstitutionAmendment, 1997 (Quebec), SI/97-141).R.S.C. -64, c. 15. [13] In a statement dated March 26, 1997, the Minister of Education explained the approach the Quebec government proposed toadopt to enable public schools to meet the expectations of Quebeckers: [translation] First, it is expedient to manage these expectations from the point of view of an open, pluralistic society.

The social andreligious landscape is shifting in all regions of Quebec. Public schools must respect the free choice or the free refusal of religion. This is

a democratic freedom. In other words, all schools must respect each student’s freedom of conscience, even if the student stands alone with respect to the majority. All schools must teach students to respect different allegiances. However, our schools must not altogether dismiss religious education.

They must show that they are open and able to recognize, regardless of specific convictions and from a critical point of view, the contribution made by the different religions in terms of culture, values and humanism. (National Assembly, Journal des débats, 2nd Sess., 35th Leg., March 26, 1997, at p. 5993) [14] The Minister spoke of the need to consider more fully the adjustments necessary to ensure that religious diversity was taken into account in courses taught in schools: [ translation ] Finally, in the context of a pluralistic society, is it not desirable that all students receive some instruction concerning the phenomenon of religion, courses on religious culture which cover the various great traditions, and courses on the history of religion?

I intend to submit this question to a Task Force whose conclusions will be referred to the National Assembly’s Standing Committee on Education, which may then hear any groups interested in this issue. (National Assembly, Journal des débats, 2nd Sess., 35th Leg., March 26, 1997, at p. 5994) [15] In 1999, the Task Force on the Place of Religion in Schools in Quebec submitted its report (Religion in Secular Schools: A New Perspective for Québec). In addition to moral education, the Task Force recommended, inter alia, that religions be studied in schools from a cultural perspective.

In 2000, the Minister of Education announced that adjustment would be made to respond to the diversity of the moral and religious expectations of the population.

That same year, a first legislative amendment was passed, marking the start of the secularization process (An Act to amend various legislative provisions respecting education as regards confessional matters, S.Q. 2000, c. 24 ). [16] In 2005, the Minister of Education published a policy paper setting out the principles on which the proposed ERC Program was to be based (Establishment of an ethics and religious culture program: Providing future direction for all Québec youth).

On June 15, 2005, the Act to amend various legislative provisions of a confessional nature in the education field, S.Q. 2005, c. 20 , was passed. Among other things, the Act authorized schools to replace Catholic and Protestant programs of religious and moral instruction subject to certain conditions.

Thus, the ERC Program was implemented gradually before becoming mandatory at the start of the 2008-9 school year. ... [Transcribed as is.] FACTS [ 14 ] On March 30, 2008, before the first day of the school year in which the ERC program became mandatory, Loyola wrote to the Minister asking to be exempted from the [ translation ] "requirement of teaching the ethics and religious culture program during the 2008- 2009 school year".

The letter argued that teaching the ERC program conflicted with the school’s nature and Catholic values. [ 15 ] The Minister sent its answer on August 7, 2008, refusing the request, which it characterized as a [ translation ] "request for a departure". [ 16 ] On August 25, 2008, alleging that its position had been misunderstood, Loyola wrote the Minister a second letter adding that it was seeking an exemption based on

section 22 of the Regulation respecting the application of the Act respecting private education [2] (the Regulation ), that is, an application for an exemption from using the ERC program as established by the Minister. [ 17 ] Loyola seeks permission to teach the compulsory ERC subject matter through its own program, which, it its opinion [ translation ] "affirms the value of the world’s religions and teaches their customs and beliefs in a manner that is much more thorough than the new program of ethics and religious culture".

It identifies the main difference between the two programs as follows: [3] [ translation ] ... we clearly identify the perspectives presented and ask our students to evaluate Catholic ethics in more detail. We believe that the methodological [translation] “neutrality” proposed by the ethics and religious culture program is problematic in theory, because it implies a moral relativism that contravenes the beliefs of many people and religions, including Catholicism.

The proposed [ translation ] “neutrality” is also unrealistic and impossible to achieve in practice. [ 18 ] In short, Loyola argues that it cannot teach the program imposed by the Minister without compromising some of its values. [ 19 ] Loyola also sent the Ministère a

summary of the alternative program it submits, describing its content and objectives. [ 20 ] The application was refused and the decision conveyed to Loyola on November 13, 2008. MINISTER'S DECISION [ 21 ] The letter signed by the Assistant Deputy Minister for School Networks, Line Gagné, indicated first that the appropriate authorities within the department had evaluated the program of studies submitted by Loyola.

She then indicated that the Minister had taken cognisance of the file and that she: [4] [ translation ] did not feel that the local program of studies that Loyola High School proposed to dispense to its students was equivalent to the department’s program Ethics and Religious Culture. The program proposed by Loyola High School is very different from the Ethics and

Religious Culture program, particularly in terms of its approach, goals and content, mainly for the reasons indicated below. [ 22 ] First, the Minister felt that the two main goals of the program, knowledge of others and the pursuit of the common good, is approached differently in Loyola's alternative program. Its approach is based on the Catholic faith.

Knowledge of others, for example, would be taught from a Catholic perspective. [ 23 ] Second, the Minister explained that the submitted program adopted the Jesuit perspective of Christian service instead of leading the students to reflect on ethical questions and the common good. [ 24 ] Third, the ethics aspect of Loyola's program appears to be focused on teaching Catholic morality. [ 25 ] Fourth, the Minister felt that the program does not provide the competency of engaging in dialogue. [ 26 ] Fifth, the study of religions planned appears to be from a Catholic perspective, whereas the ministerial program provides for individual observation without comparison or reference to other religions. [ 27 ] Sixth, the Minister criticizes the program submitted by Loyola for imposing a role on teachers that differs from that required by the ministerial program.

According to the official program, teachers must guide students in their reflection, whereas with Loyola’s program would require teachers to teach the foundations and beliefs of the Catholic religion. [ 28 ] Finally, the decision states that a private educational institution may implement a denominational local program of studies of up to four units, in addition to the ERC course. PROCEEDINGS [ 29 ] Loyola asked the Superior Court to review this decision on administrative and constitutional law grounds.

In its re-amended motion to institute proceedings, it sought permission to teach its alternative program instead of the ministerial ERC program. Loyola alleged that this program is inconsistent with the school's Catholic convictions and that it is not really neutral, since it promotes a relativist ideology, or as it calls it: "normative pluralism". [ 30 ] On September 19 and June 15, 2009, Loyola notified the AGQ, pursuant to

article 95 C.C.P. , that it would be presenting a constitutional argument in support of its allegations and that it reserved the right to contest the constitutional validity of certain provisions in the Basic school regulation for preschool, elementary and secondary education . THE JUDGMENT UNDER APPEAL [ 31 ] The trial judge stated, by way of introduction, that the [ translation ] "answer to that question involves, in particular, the constitutional principles of the supremacy of God and of the rule of law". [5] [ 32 ] He then identified the stakes as follows: [6] [ translation ] (

i) in short, the Minister wants that subject, ERC, to be taught in a lay manner, whereas Loyola agrees to teach it but must teach it in a denominational manner so that the school complies with the precepts of the Catholic religion that governs it and that it has applied since it was founded in 1848. [ 33 ] He also asked this general question: [ translation ] “So the present case raises the question as to whether the State can secularize the teaching of religion and morality within the very walls of a private Catholic denominational school”. [7] [ 34 ] The trial judge then analyzed the expert testimony.

He concluded that the expert Lévesque, who testified for Loyola, was perfectly credible. He accepted from Lévesque's report that the ministerial program discredited the religious one and that it was inconsistent with Loyola's denominational instruction. As for the testimony of the expert Georges Leroux, who testified on behalf of the government, the judge found it to be of little relevance because Leroux mistook the subject of the debate.

As for Loyola's second expert witness, Douglas Farrow, his testimony was deemed convincing and the Court accepted that Loyola would transgress the fundamental rules of the Catholic Church by teaching the ministerial program. [ 35 ] The judge classified the issues in dispute under two headings: [8] Administrative law aspect (

a) What is the standard of review? (

b) Should the Minister’s decision be quashed, considering the appropriate standard of review? Constitutional law aspect (

a) Does the Minister’s decision infringe freedom of religion as guaranteed by

section 2(

a) of the Canadian Charter or

section 3 of the Québec Charter ? If so, can the infringement be justified by the application of the first

section of the Canadian Charter or

section 9.1 of the Québec Charter ? [ 36 ] To begin, the judge sought to identify the applicable standard of review based on Dunsmuir . [9] He concluded that since there was no privative clause protecting the Minister's decision, it was a question of jurisdiction. He did not discuss the other analytical factors regarding the standard of review and considered instead the

interpretation that should be given to subsection 22(1) of the Regulation . [10]

He concluded that the Minister's jurisdiction was the result of a limited, rather than a discretionary, power. [ 37 ] In interpreting the expressions in

section 22 "shall be exempt", "provided", and "the institution dispenses programs of studies which the Minister of Education, Recreation and Sports judges equivalent", the trial judge was of the view that the exemption under this

section is [ translation ] "automatic in a way". [11] [ 38 ] He also noted that it was a department employee, Jacques Pettigrew, who established the equivalency criteria in his consideration of the program submitted by Loyola. The judge found that the power to define the word "equivalent" belongs to the government and that this was an unlawful delegation of power. [ 39 ] He also considered the enabling provision of

section 22 of the Regulation , paragraph 7 of

section 111 of the Act respecting Private education [12] (APE), and found that it gave the Minister jurisdiction to observe whether a program was equivalent to its own within the ordinary meaning of the word "equivalent". In other words, the judge found that the Minister did not have jurisdiction to establish an equivalency test when deciding whether a program submitted is equivalent to its own. [ 40 ] The judge decided that subsection 22(1) of the Regulation was enacted pursuant to what he referred to as [ translation ] "the first component" of paragraph 7 of

section 111 of the APE , which provides that the government may, by regulation, "exclude, on the conditions it may determine ... persons, bodies, institutions or educational services from all or some of the provisions of this Act or of the regulations made under this section". [13] This is how he expressed himself: [14] [ translation ] [135] Furthermore, the term “judged” in the first paragraph of

section 22 of the Regulation cannot give the Minister discretionary power since the wording “on the conditions it may determine”, stipulated in paragraph 7 of

section 111 of the Act, require the government to establish standards in the Regulation, as it in fact did in using the term “equivalent” .

However, it cannot rely on the discretion of the Minister or delegate to her through that Regulation the power to make those standards. [Transcribed as is.] [Emphasis added.] [ 41 ] Consequently, the judge subjected the Minister's decision to the correctness standard of review. [ 42 ] He then rendered what he felt was the correct decision. [ 43 ] He was of the opinion that, among the six grounds given by the Minister to refuse Loyola's application, four were based on the difference between the two programs' approaches, namely, cultural and denominational.

He added that these four grounds were incorrect because they exceeded jurisdiction. Indeed, the word "equivalent" used in

section 22 of the Regulation does not include this distinction. In his view, the Minister can only judge whether the programs are equivalent according to the ordinary meaning of this word. [ 44 ] He then found that the two other grounds raised by the Minister were mere excuses.

He found that the program proposed by Loyola met the competency of engaging in dialogue. [ 45 ] Furthermore, he found that the decision-making process was tainted by several errors. [ 46 ] First, he repeated that employees of the department, like the Minister, did not have the power to define the equivalency test on which the decision is based. [ 47 ] He then reiterated that secularity is not necessary for an alternative program to be deemed equivalent to the ministerial ERC program. [ 48 ] He further found that the Minister's decision should have taken into account the fact that Loyola is a private Catholic school. [ 49 ] In his view, the content and objectives of the programs are sufficiently similar to be deemed equivalent: [ translation ] "Thirdly, the Court is of the opinion that Loyola’s program is comparable to the ERC program established by the Minister.

The teaching of Loyola’s program in accordance with the Catholic faith does not change its nature or make it lose its status as an equivalent program." [15] [ 50 ] As for the constitutional aspect, although in his opinion it was not necessary to do so, the trial judge decided to rule on the constitutional argument presented by Loyola and Zucchi.

They alleged that their freedom of religion had been violated. [ 51 ] Based on the Supreme Court judgment in Multani , [16] the judge decided that the standard of correctness applied in the present case because the review concerned the Minister’s decision in light of the values enshrined in the Charters. [ 52 ] He then limited his analysis to freedom of religion as guaranteed under the Quebec Charter . [17] He concluded that Loyola is a person within the meaning of the Charter and that as such, it has freedom of religion.

He defined this right as follows: [18] [ translation ] [261] Accordingly, the Court is of the opinion, given all the circumstances and the nature of the right invoked, that Loyola is entitled to the protection of its freedom of religious expression and its freedom to teach the ERC course using its Catholic program. [ 53 ] He then decided that the Minister's decision violated Loyola's freedom of religion and that of its members.

He explained the school's untenable position of having a sincere religious belief in its duty to teach the precepts of the Catholic faith but having to teach the requirements of the ministerial program. In his view, because the Minister's decision is not a rule of law, it cannot be saved if it

violates a Charter right. [ 54 ] He added that the minimal impairment test had not been met. [ 55 ] The judge considered the presence of the respondent Zucchi to be a conservatory intervention since the latter supported Loyola's arguments and did not seek any conclusions personally. [ 56 ] The judge concluded with an epilogue.

In paragraph 331, stating that he was paraphrasing Beetz J. of the Supreme Court, he compared the Minister's decision to a decision by the inquisition: [19] [ translation ] [331] To paraphrase Beetz J.’s comments in Slaight Communications Inc. —comments that pertain to freedom of expression but are just as relevant to freedom of religious expression—the obligation imposed on Loyola to teach the ERC course in a secular manner is totalitarian in nature and essentially tantamount to the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus [Citations omitted] ISSUES [ 57 ] First regarding the administrative law aspect and then the constitutional law aspect, I propose the following questions: (

a) In choosing the standard of correctness, did the trial judge correctly identify the standard of review? (

b) If the standard of review is that of reasonableness, is the Minister's decision one of the possible outcomes? (

c) Did the trial judge correctly find that Loyola could argue freedom of religion? (

d) Did the trial judge err in finding that there was a violation of freedom of religion? (

e) Did the trial judge err in deciding that this violation could not be justified? [ 58 ] The dispute concerns the application of sections 22 and 22.1 of the Regulation respecting the application of the APE , [20] which are drafted as follows: 22. Tout établissement est exempté de l'application du premier alinéa de l'

article 32 de la

Loi sur l'enseignement privé (L.R.Q., c. E-9.1 ) pourvu que l'établissement offre des programmes jugés équivalents par le ministre de l'Éducation, du Loisir et du Sport. En outre, si le ministre l'autorise, une organisation ou association à caractère religieux sans but lucratif est exemptée de l'application du paragraphe 1 du premier alinéa de l'article 25, du quatrième alinéa de l'

article 32 et de l'article 35 de la Loi pourvu qu'une telle organisation ou association remplisse les conditions déterminées par le ministre. 22.1. Le ministre peut, aux conditions qu'il détermine, exempter de l'application de toutes les dispositions de la Loi, une personne ou un organisme qui dispense dans ses installations tout ou

partie des programmes d'études en formation professionnelle établis par le ministre et énumérés dans une liste établie conjointement par le ministre et le ministre de l'Emploi et de la Solidarité sociale. 22. Every institution shall be exempt from the application of the first paragraph of

section 32 of the Act respecting private education (chapter E-9.1 ) provided the institution dispenses programs of studies which the Minister of Education, Recreation and Sports judges equivalent. In addition, if the Minister so authorizes, a religious non-profit organization or association shall be exempt from the application of subparagraph 1 of the first paragraph of

section 25, the fourth paragraph of

section 32 and

section 35 of the Act provided the organization or association meets the conditions set out by the Minister. 22.1 The Minister may, on the conditions he determines, exempt from the application of all the provisions of the Act any person or body dispensing in its facilities a portion or all of the programs of study in vocational training determined by the Minister and enumerated in a list set up by both the Minister and the Minister of Employment and Social Solidarity. [ 59 ] As previously stated, according to the Act Respecting the Ministère de l'Éducation, du Loisir et du Sport , [21] the Minister is responsible for the application of laws relating to education. [ 60 ] The Education Act (EA) [22] is at the forefront of educational governance.

According to

section 461 of this Act , the Minister establishes the programs of compulsory subjects, which include compulsory objectives and content. [ 61 ]

Section 447 of the same statute gives the government the power to establish, by regulation, a basic school regulation addressing the nature and objectives, and general organizational framework of the educational services.

[ 62 ] This is the

section under which the Basic school regulation for preschool, elementary and secondary education [23] was enacted. [ 63 ] Essentially, the Basic school regulation sets out the rules regarding admission, school attendance, evaluation of learning, and the range of subjects. The ERC program is included as a compulsory subject for the first and second cycles of secondary school (sections 23 and 23.1). [ 64 ]

Section 25 of the Basic school regulation allows schools to allocate a maximum of four units to a local program of studies without the Minister's authorization, that is, to modify or adapt the educational program as they wish. [ 65 ] The APE governs the activities of private schools. In

section 25, it creates an obligation for private schools to respect the Basic school regulation imposed by the EA : [24] 25. Le régime pédagogique applicable aux services éducatifs visés par la présente

section est le même que celui, édicté en application de la

Loi sur l'instruction publique (chapitre I-13.3 ), applicable aux services éducatifs de même catégorie dispensés par les commissions scolaires, pour tout ce qui concerne : 1 ° les matières à enseigner, sous réserve des restrictions mentionnées au permis, le cas échéant; ... 25.

The basic school regulation which applies to the educational services contemplated in this division shall be the basic school regulation prescribed under the Education Act (chapter I-13.3 ) which applies to the educational services of the category dispensed by school boards, in all matters concerning: (1) the subjects to be taught, subject to restrictions mentioned in the permit; ... [ 66 ] A private school must teach the subjects set out in the Basic School Regulation , including the compulsory subject matter in the ERC program; subsection 32(1) of the APE specifies that these establishments must follow the programs of studies for compulsory subjects as established by the department: [25] 32.

À l'enseignement primaire et à l'enseignement secondaire général, les programmes d'études en ce qui a trait à l'enseignement des matières obligatoires sont ceux établis par le ministre en vertu de l'

article 461 de la

Loi sur l'instruction publique (chapitre I-13.3 ). ... 32. The elementary school program of studies and the secondary school program of studies in general education shall, for compulsory subjects, be the programs established by the Minister under

section 461 of the Education Act (chapter I-13.3 ). ... [ 67 ] Furthermore,

section 111 of the EA allows the government to adopt regulations for the purpose of applying the law. Paragraph 7 of this provision allows the government to: exclure, aux conditions qu'il peut déterminer, ou autoriser, dans la mesure qu'il indique, le ministre à exclure, aux conditions que ce dernier peut déterminer, des personnes, organismes, établissements ou services éducatifs de tout ou

partie des dispositions de la présente loi ou des règlements pris en application du présent article; exclude, on the conditions it may determine or authorize, to the extent it indicates, the Minister to exclude, on the conditions he may determine, persons, bodies, institutions or educational services from all or some of the provisions of this Act or of the regulations made under this section; [ 68 ] The Basic School Regulation addresses teaching permits, contracts with private schools and certain exemptions, among other things. [ 69 ] Indeed, the Regulation contains provisions concerning the exemptions stated in paragraph 7 of

section 111 of the APE . [ 70 ] Loyola's application was based on

section 22 of the Regulation [26] : 22. Tout établissement est exempté de l'application du premier alinéa de l'

article 32 de la

Loi sur l'enseignement privé (L.R.Q., c. E-9.1 ) pourvu que l'établissement offre des programmes jugés équivalents par le ministre de l'Éducation, du Loisir et du Sport . 22. Every institution shall be exempt from the application of the first paragraph of

section 32 of the Act respecting private education (chapter E- 9.1 ) provided the institution dispenses programs of studies which the Minister of Education, Recreation and Sports judges equivalent . [Emphasis added.]

ANALYSIS Administrative law aspect Submissions of the Parties [ 71 ] The AGQ is of the opinion that the Minister's decision is well founded. It therefore argues that the trial judge erred in his review of this decision. [ 72 ] It claims that

section 22 of the Regulation grants the Minister a discretionary power to evaluate the equivalence of a program proposed by an educational institution to the ministerial program.

The AGQ explains that it would be incongruous to trust the Minister with applying the statute and developing all the programs of studies while refusing her the discretion to evaluate whether two programs are equivalent. [ 73 ] The AGQ goes on to argue that the government may delegate this discretionary power to the Minister. [ 74 ] In its view, in a judicial review, discretionary ministerial decisions command a high degree of deference from the court.

In this case, the AGQ argues that the Minister correctly used her discretion and did not act without jurisdiction, for improper purposes, or in a way that was discriminatory. She evaluated the equivalency of the programs according to the goals and objectives of the ERC program. The AGQ then demonstrates that the program proposed by Loyola is not equivalent to that developed by the department, which is one of the compulsory programs. It explains the history of Quebec's education reform, which led to the goals of objectivity and neutrality, and explains the importance of the dialogue competency in the ERC program.

For the AGQ, the Minister's decision was not reviewable. [ 75 ] The AGQ also argues that the discretionary powers of ministers may be exercised by department employees through implicit delegation. [ 76 ] Finally, it argues that to accede to Loyola's application for an exemption would be tantamount to making a denominational course compulsory. [ 77 ] As for Loyola and Zucchi, they launch a full-scale defence of the trial judge's decision.

They complain that the ERC program would [ translation ] "effectively force the school to set aside its Catholic nature and mission for the duration of that class". [ 78 ] They further argue that adding the denominational criterion to the Minister's equivalency analysis amounted to an excess of jurisdiction. Because the Regulation does not provide for any such comparative test, the standard of review that applies to the Minister's decision is that of correctness. [ 79 ] In Loyola and Zucchi’s opinion, the ultimate purpose of

section 22 of the Regulation is to allow for some flexibility in applying the programs developed by the department. [ 80 ] They argue, based on the Supreme Court judgment Adler v. Ontario , [27] that it would be contrary to the purposes of the law to add a faith-based criterion. Loyola and Zucchi add that the AGQ's expert acknowledged that denominationalism is still legitimate in private schools. [ 81 ] In an argument based on a comparison of

section 22 and

section 22.1 of the Regulation , Loyola and Zucchi maintain that neither the Minister nor, a fortiori, her employee can establish the conditions for exemption. They explain that it is not because the government may delegate a power that it has in fact done so. [ 82 ] Moreover, Loyola and Zucchi believe that the program proposed by Loyola addresses the dialogue competency. They add that the employee who compared the programs conducted her analysis with incomplete documentation. They claim that the trial judge made no reviewable error in finding that their program includes the competency of engaging in dialogue. (

a) In choosing the standard of correctness, did the trial judge correctly identify the standard of review? [ 83 ] First, I am of the view that the trial judge could not substitute his decision for the Minister’s. [ 84 ] With the use of the words "deemed equivalent",

section 22 of the Regulation includes, on its face, a broad discretion. [ 85 ] The judge was wrong to conclude that the decision was unlawful based on the fact that it was a department employee who established the conditions for equivalency. Consequently, he incorrectly identified the standard of review. [ 86 ] I am of the view that the standard of intervention is that of reasonableness. That being said, I consider that the Minister correctly exercised her discretion and that there is no reason to intervene. [ 87 ] The Supreme Court in Baker v.

Canada offers a definition of the notion of discretionary power that is relevant here: "The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries". [28] [ 88 ] More recently, in Catalyst Paper Corp. v.

North Cowichan (District) , [29] the Supreme Court accepted that the applicable standard of review was that of reasonableness when an administrative body makes a decision in a context where several outcomes are possible: [24] It is thus clear that courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws. The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside.

The fact that wide deference is owed to

municipal councils does not mean that they have carte blanche . [25] Reasonableness limits municipal councils in the sense that the substance of their bylaws must conform to the rationale of the statutory regime set up by the legislature. The range of reasonable outcomes is thus circumscribed by the purview of the legislative scheme that empowers a municipality to pass a bylaw. [26] Here the relevant legislation is the Community Charter .

Section 197 gives municipalities a broad and virtually unfettered legislative discretion to establish property tax rates in respect of each of the property classes in the municipality, unless limited by regulation. The intended breadth of the legislative discretion under the current legislative scheme is highlighted by the fact that the government of British Columbia ceased to impose regulatory limits on the ratios between tax rates in

Section 199(

b) of the Community Charter allows the Lieutenant Governor in Council to make regulations on the relationships between Class 1 and Class 4 tax rates, and no regulation of this sort has been reintroduced since the repeal of the 1984 regulation, which prescribed a 1 to 3.4 ratio between residential and major industry tax rates (B.C. Reg. 63/84, adopted pursuant to s. 14.1(3)(

b) of the Municipal Finance Authority Act , R.S.B.C. 1979, c. 292, the predecessor of s. 199(

b) of the Community Charter ). Special provisions of the Community Charter relating to parcel taxation, local area services, business improvement areas, or property value tax exemptions address particular concerns and do not detract from the broad power of British Columbia municipalities to vary rates between different classes of property. [ 89 ] Indeed,

an act is discretionary when the administrative authority can choose from several outcomes. [30] According to Professor Pierre Lemieux, however, with respect to limited jurisdiction, [ translation ] "the administrative authority's action must fit narrowly within the framework provided by the legislature." [31] A minister's power will be limited if he or she must act in a certain way when a number of objective statutory conditions exist. [32] [ 90 ] In his book Droit administratif , author Patrice Garant states that, to qualify a power as discretionary it is necessary to refer to the wording of the enabling [33] standard: [ translation ] The legislature usually confers a limited power by using the word "shall" whereas a discretionary power will generally be conferred upon its owner with the word "may", or one of the following expressions: "if deemed expedient", "if deemed appropriate", if deemed consistent with public interest", "if deemed necessary", "may, in its discretion", "may, if considered appropriate", and so on. [ 91 ] The legislative context may also indicate whether a power is discretionary. [34] [ 92 ] For authors Issalys and Lemieux, [ translation ] "exercising a discretionary power is valid only insofar as it adheres to the spirit and the letter of the enabling standard ...

". [35] They add, however: [36] [ translation ] …a strict

interpretation of a discretionary power must not prevent it from being used effectively. Thus, it cannot be hindered to the point that legislative intent is set aside, since the objective of the law would then not be attained. Some acts will therefore be deemed necessary to apply a statute, even if the statute in question does not expressly provide for their adoption. Their author will therefore be authorized to act by necessary deduction. [ 93 ] The trial judge committed an overriding error in finding that the power conferred upon the Minister was limited.

There is no exemption that is [ translation ] "automatic in a way", [37] as the trial judge wrote. The delegated legislator chose to confer discretion upon the Minister. [ 94 ] In fact, the wording of the Regulation does not include the words "must", "may" or other similar expressions that could be indicative of a limited power. [ 95 ] I understand that if the Minister deems a program offered by an establishment to be equivalent to the ministerial program, she must exempt that establishment from following the prescribed program. The discretionary power applies to the evaluation of that equivalence.

If the Minister deems that the submitted program is equivalent but does not grant the exemption sought, the applicant may bring an application in mandamus to compel her to grant said exemption.

It is impossible, however, to force the Minister to rule that one program is equivalent to another so long as this program does not lose sight of the purpose of the statute and she does not decide for reasons that are foreign to this purpose. [ 96 ] As Pierre Lemieux writes, the question concerns the degree to which the administration is free to act. [38] [ 97 ] As for Patrice Garant, he states that a discretionary power does not necessarily apply to all the components of

an act. It may exist on several levels. [39] In the present case, this discretion exists with respect to the Minister's decision to judge whether or not a local program is equivalent. [ 98 ] The very nature of the application for an exemption makes the existence of a discretionary power necessary. According to

section 2 of the Act Respecting the Ministère de l'Éducation, du Loisir et du Sport , the Minister has the duty of "ensuring the development of educational institutions and overseeing the quality of the educational services provided by those institutions". [40] The APE also confers this duty upon the Minister (section 459). The

preamble to the Act respecting the Ministère acknowledges that every child is "entitled to the advantage of a system of education conducive to the full development of his personality". [ 99 ] The Minister needs her discretion to assume the role she is assigned by the legislator.

Without it, when an application for exemption is made, her hands would be tied and she would lose the ability conferred upon her by the statute to determine equivalence. [ 100 ] Because the Minister must establish the programs of studies for the compulsory subjects (section 461 of the APE ), it would be absurd to deprive her of the necessary discretion to evaluate the conditions in which an alternative program is equivalent.

[ 101 ] As previously stated, the application of the statute relating to private schools makes the exercise of discretion necessary, and obviously, this discretion must be exercised in light of the objectives sought by the legislator. [ 102 ] Because the Minister has the power to determine whether a program is equivalent to the ministerial program, I fail to see how, in comparing the denominational approach of Loyola's program to the cultural and neutral approach of the ERC program, she exceeded her jurisdiction. She has not added criteria to those established by the legislator. [ 103 ] The trial judge concluded that

section 22 of the Regulation must not be interpreted so as to give the Minister the power to decide the conditions for exemption, as this would be an unlawful delegation of discretionary power. I do not agree. [ 104 ] It is true that the holder of a discretionary power conferred by the legislator cannot delegate it to another ( delegatus non potest delegare ). Authors Issalys and Lemieux state: [41] [ translation ] Any delegation of a discretionary power through regulation (see 7.28), directive (see 2.19) or administrative practice (see 2.22) is therefore unlawful unless explicitly allowed by the law. ...

A delegation of discretionary power is unlawful when, for example, instead of establishing complete and sufficient standards, the delegator leaves the responsibility of doing so to others (see 7.28). [ 105 ] In this case, the statute explicitly enables the government to authorize the Minister to exclude institutions from some of the provisions of the Act . ( paragraph 7 of

section 111 APE ). I do not share the trial judge's opinion that, in his words, it is only [ translation ] "the first component" of this provision that enables the government to confer upon the Minister the power under

section 22 of the Regulation . As previously explained, I am of the view that this power is discretionary. To reiterate the wording of

section 111.7 APE , if the legislator had not wanted to "authorize, to the extent it indicates, the Minister to exclude, on the conditions he may determine ...", it would not have given the Minister the power to determine whether a program was equivalent. [ 106 ] The judge also criticized the fact that the assessment of the criteria for program equivalence was performed by a department employee, Jacques Pettigrew. [ 107 ] As the Supreme Court wrote in 1977, [42] it is unrealistic to expect a minister to personally exercise all the powers and duties bestowed by a law: Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v.

Commissioners of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities.

Any other approach would but lead to administrative chaos and inefficiency. [Citations omitted.] [ 108 ] The acts leading up to a decision do not involve an illegal delegation of a discretionary power. [43] [ 109 ] Pettigrew, the employee in charge of the ERC program, entrusted the task of performing a comparative analysis of the programs to another employee, Nathalie Knott. She performed the requested analysis according to Pettigrew's instructions, that is, by verifying whether both programs were equivalent in approach and content.

He told her that the program's approach is [ translation ] "cultural and nondenominational" and that its content is [ translation ] "Ethics – Religious culture – Dialogue". [ 110 ] The analysis was signed by Jacques Pettigrew, who was of the opinion that Loyola's program was not equivalent to the ERC program. An employee then prepared a letter to the Minister regarding the matter. This letter was approved by the Assistant Deputy Minister for School Networks, Line Gagné, and by the Assistant Deputy Minister for Preschool, Primary and Secondary Education, Alain Veilleux, among others.

In this letter, the deputy ministers recommended that the Minister refuse the exemption sought by Loyola. The analysis referred to above was enclosed. The Minister's decision, which was sent to Loyola, was largely based on this analysis because the reasons correspond to the gaps in Loyola's program identified in the analysis. [ 111 ] Ultimately, it was the Minister who decided whether Loyola's program was equivalent to the ERC program. [ 112 ] In a recent judgment, 368226 Canada Inc. v. Agence du revenue du Québec , [44] this Court reiterated the existence of the so- called implicit delegation rule of

interpretation and its application unless it is precluded by the very wording of the enabling statute conferring the power on the minister personally. [ 113 ] The judge erred by identifying the standard of review of this administrative decision as being that of correctness. I am of the contrary opinion and believe that the Minister did not exceed her jurisdiction. I would add that, pursuant to the teachings of the Supreme Court in Dunsmuir , I also find that the standard of review is that of reasonableness. [ 114 ] Per the Supreme Court, [45] there are two standards of review: [51] ...

As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of

correctness.

Some legal issues, however, attract the more deferential standard of reasonableness. [ 115 ] To identify the applicable standard of review, the first step is to check whether the issue has already been settled by case law. [46] If it has not, the next step is to perform the analysis for the standard of review, as provided under Dunsmuir . [47] [ 116 ] The finding that the statute confers a discretionary power upon the public administration dictates that the appropriate standard of review is that of reasonableness. [48] I agree with the AGQ when it writes in its factum that [ translation ] "A long line of consistent case law indicates that a review of a ministerial decision that is discretionary in nature commands a very high degree of deference”. [49] [ 117 ] Case law therefore suggests that the reasonableness standard be used.

Furthermore, the factors identified in Dunsmuir to analyze the standard of review, considered as a whole, weigh in favour of this standard. [ 118 ] These factors are: [50] [64] ... (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [ 119 ] As the trial judge pointed out, the lack of a privative clause protecting the Minister's decision [51] does not put a stop to the analysis. [ 120 ] As stated above, the Minister's goal within Quebec's educational legislative framework is to ensure that the education provided is of quality.

To meet this objective, she oversees the application of statutes on education, establishes the programs of studies, determines compulsory courses, and so on. This factor militates in favour of the standard of reasonableness. [ 121 ] In addition, the nature of the question at issue is the equivalence of the two programs. This is a highly factual issue that the Minister considered within the purview of her expertise.

The Minister has a certain expertise when it comes to deciding whether to grant exemptions for programs and analyzing the equivalence of programs of studies. [ 122 ] The Minister's decision must be considered according to the standard of reasonableness. In Canada v. Khosa , [52] Binnie J. repeats the requirements of this standard: [59] ... Where the reasonableness standard applies, it requires deference.

Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir , at para. 47). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [ 123 ] I am of the view that the Minister's decision to refuse the application for an exemption is one of the possible, acceptable outcomes which are defensible in respect of the facts and law. The reasons given are not [ translation ] "mere excuses".

They are transparent and intelligible, and are not unconcerned with the legislator's objectives. [ 124 ] Overall, the Minister refused to grant the exemption because of the denominational approach of Loyola's program. The ERC program replaces religious education, going from what was basically denominational education to secular education. The program clearly states that its objective is not to propose or impose rules of morality or to guide the students' spiritual journey. In this respect, teachers must refrain from asserting their own beliefs.

Additionally, since its creation in 1999, it has been clear that the program is non- denominational. [ 125 ] The program submitted by Loyola appears to cover content similar to that of the Minister's program, but there can be no doubt that the teaching perspective is denominational. [ 126 ] Taking into account the stated political will to make schools non-denominational and referring to the historical background given by Deschamps J. in S.L. v.

Commission scolaire des Chênes , [53] which I quoted in introduction, I do not see how the decision can be considered to be outside the legislative and regulatory purview of the department's activities. [ 127 ] I find that the Minister's decision is discretionary, that it is reasonable, and that it is therefore insulated from judicial review. Constitutional law aspect Submissions of the Parties [ 128 ] The AGQ argues that Loyola, as a legal person, cannot claim a violation of its freedom of religion.

In its view, Loyola does not have this right because a legal person is incapable of having sincere religious beliefs. The AGQ adds that Loyola cannot argue on behalf of others, that is, the students who attend the school and their parents. [ 129 ] The AGQ raises the evidentiary issues inherent to Loyola's theory: how can the school principal testify to a violation of the freedom of religion of the school and of its members? [ 130 ] The AGQ then goes on to argue that the Charters do not protect trivial interferences with rights. It believes that Loyola has not identified a specific religious belief.

It cites several authorities stating that the ERC program does not violate freedom of religion. In support of this argument, it submits that there is an analogy to be made with the Supreme Court judgment in Chamberlain v. Surrey School District No. 36 . [54] [ 131 ] Overall, the AGQ argues that, if there is interference, it is trivial. Regarding this aspect, the AGQ points out that Loyola is free to give a four-credit denominational course without the Minister's permission.

[ 132 ] Alternatively, the AGQ claims that the decision in this case was made as prescribed by law, within the meaning of

section 1 of the Canadian Charter . [55] In its view, the interference is justified. The AGQ explains the importance of the objectives sought, arguing that the decision allows these objectives to be achieved and that it constitutes a minimal impairment within the meaning of Oakes . [56] [ 133 ] For their part, Loyola and Zucchi maintain that a legal person may argue freedom of religion. They claim that their right is truly impaired.

They explain how the ministerial program is incompatible with their religious beliefs. [ 134 ] Loyola and Zucchi then point out that the issue as to whether there is a violation is a question of fact that should be left to the trial judge's appreciation. [ 135 ] They argue that the refusal to exempt Loyola does not constitute a reasonable limit on freedom of religion within the meaning of the Charters .

They also apply the Oakes test, arguing that the program’s objective is unconstitutional and that it compels a Catholic school to set aside its denominational point of view when teaching. [ 136 ] Alternatively, they argue that there is no rational connection between the objectives described by the AGQ and the Minister's refusal. It is their view that there is nothing in Loyola's program that compromises these objectives.

In short, they find that it is an impairment that is neither minimal nor proportionate. [ 137 ] I note that the proceedings do not address the constitutional validity of the statute or the ERC course. They challenge the Minister's discretionary decision on constitutional grounds. Loyola argues that its freedom of religion is impaired by the Minister's decision refusing to grant it the exemption sought. [ 138 ] Freedom of religion is enshrined in

section 3 of the Quebec Charter : [57] 3. Toute personne est titulaire des libertés fondamentales telles la liberté de conscience, la liberté de religion, la liberté d'opinion, la liberté d'expression, la liberté de réunion pacifique et la liberté d'association. 3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. [ 139 ] And

section 2 of the Canadian Charter [58] guarantees freedom of conscience and religion: 2. Chacun a les libertés fondamentales suivantes :

a) liberté de conscience et de religion;

b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication;

c) liberté de réunion pacifique;

d) liberté d'association. 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. [ 140 ] The Supreme Court defined freedom of religion as follows in R v. Big M Drug Mart Ltd. [59] : The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. [ 141 ] In my view, on the constitutional aspect of the appeal, the analysis should be based on two recent Supreme Court judgments: Doré v. Barreau du Québec [60] and S.L. c.

Commission scolaire des Chênes . [61] I will explain below. [ 142 ] First, when considering contested administrative decisions, I find it useful to recall the significance of the Charters and the rights enshrined therein. [ 143 ] Patrice Garant wrote the following on this subject: [ translation ] "The first limit on discretionary power is undoubtedly the Constitution and the Charter ...". [62] Administrative decision-makers must act in a manner that is consistent with the values underlying the Charters , [63] to which their decisions are subject. [64] They must take into account Charter rights when exercising their discretion. [65] [ 144 ] The trial judge deemed that the standard of correctness applied because he was reviewing an administrative decision in the light of the Quebec Charter . [66] [ 145 ] In the Supreme Court judgment Doré , [67] which was rendered after the trial judgment, Abella J. considered which standard of review is applicable in matters of judicial review of administrative decisions that include an aspect affecting a Charter right.

Her analysis surveyed the evolution of the Supreme Court's thinking, and it is useful to reproduce a lengthy excerpt here. She writes: [68] [23] It is clear from the decisions of the Tribunal and the reviewing courts in this case that there is some confusion about the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter values. Some courts have used the same s. 1 Oakes analysis used for determining whether a law complies with the Charter ; others have used a classic judicial review approach.

[24] It goes without saying that administrative decision-makers must act consistently with the values underlying the grant ofdiscretion, including Charter values (see Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, at para. 71;Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19-23; and Ontario (Public Safety and Security) v.Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 62-75). The question then is what framework should beused to scrutinize how those values were applied? [25] In Slaight Communications Inc. v.

Davidson, (SCC), [1989] 1 S.C.R. 1038, Lamer J., in his concurring reasons,said that the Charter applied to a labour adjudicator’s decision and used the s. 1 framework developed in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, to determine if the decision complied with the Charter. Writing for the majority, Dickson C.J. agreed withLamer J. that the Charter applied to administrative decision-making.

But while he applied the Oakes framework, he notably andpresciently observed that “[t]he precise relationship between the traditional standard of administrative law review of patentunreasonableness and the new constitutional standard of review will be worked out in future cases” (p. 1049 (emphasis added)). [26] Yet the approach taken in Slaight can only be properly understood in its context.

Importantly, when Lamer J. held thatdiscretionary administrative decisions implicating Charter values should be reviewed under the Oakes analysis, he did so in the contextof the perceived inability of administrative law to deal with Charter infringements in the exercise of discretion. This concern permeatesthe reasons in Slaight. As Prof.

Geneviève Cartier has noted: [traduction] . . . while Lamer J thought the administrative law standard was ill-suited to Charter challenges because of its inability to inquire into thesubstance of discretionary decisions, Dickson CJ thought it was ill-suited because of its inability to properly unravel the value inquiriesinvolved in any Charter litigation. (“The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law — The Case ofDiscretion”, in David Dyzenhaus, ed., The Unity of Public Law (2004), 61, at p. 68) [27] The approach taken in Slaight attracted academic concern from administrative law scholars.

Prof. John Evans argued that ifcourts were too quick to bypass administrative law in favour of the Charter, “a rich source of thought and experience about law andgovernment will be overlooked or lost altogether” (“The Principles of Fundamental Justice: The Constitution and the Common Law”(1991), 29 Osgoode Hall L.J. 51, at p. 73). Similarly, Prof. Cartier suggested that the Slaight approach reduced the role of administrativelaw to the “formal determination of jurisdiction on the basis of statutory

interpretation”, which prevented the control of discretion withreference to “values” and presented “an impoverished picture of administrative law” (pp. 68-69). [28] The scope of the review of discretionary administrative decisions that provided the backdrop for the decision in Slaight wasaltered by this Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R.817, at para. 65.

In that case, L’Heureux-Dubé J. concluded that administrative decision-makers were required to take into accountfundamental Canadian values, including those in the Charter, when exercising their discretion (Baker, at paras. 53-56). [29] Building on the decision in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227 (“C.U.P.E.”), Baker represented a further shift away from Diceyan principles.

By recognizing thatadministrative decision-makers are both bound by fundamental values and empowered to adjudicate them, Baker ceded interpretiveauthority on those issues to those decision-makers (David Dyzenhaus and Evan Fox-Decent, “Rethinking the Process/SubstanceDistinction: Baker v. Canada” (2001), 51 U.T.L.J. 193, at p. 240). This allows the Charter to “nurture” administrative law, byemphasizing that Charter values infuse the inquiry (Cartier, at pp. 75 and 86; see also Mary Liston, “Governments in Miniature: TheRule of Law in the Administrative State”, in Colleen M.

Flood and Lorne Sossin, eds., Administrative Law in Context (2008), 77, at p.100; Susan L. Gratton and Lorne Sossin, “In Search of Coherence: The Charter and Administrative Law under the McLachlin Court”, inDavid A. Wright and Adam M. Dodek, eds., Public Law at the McLachlin Court: The First Decade (2011), 145, at pp. 157-58). [30] When this is weighed together with this Court’s subsequent decisions, we see a completely revised relationship between theCharter, the courts, and administrative law than the one first encountered in Slaight. In Dunsmuir v.

New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190, the Court held that judicial review should be guided by a policy of deference, justified on the basis of legislativeintent, respect for the specialized expertise of administrative decision-makers, and recognition that courts do not have a monopoly onadjudication in the administrative state (para. 49). And in R. v.

Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 78-82, building onthe development of the jurisprudence, the Court found that administrative tribunals with the power to decide questions of law have theauthority to apply the Charter and grant Charter remedies that are linked to matters properly before them. [31] But, as predicted by Chief Justice Dickson, this Court has explored different ways to review the constitutionality ofadministrative decisions, vacillating between the values-based approach in Baker and the more formalistic template in Slaight.

The s. 1Oakes approach suggested by Lamer J., was followed in Stoffman v. Vancouver General Hospital, (SCC), [1990] 3S.C.R. 483; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; Ross v. New Brunswick SchoolDistrict No. 15, (SCC), [1996] 1 S.C.R. 825; Eldridge v. British Columbia (Attorney General), (SCC),[1997] 3 S.C.R. 624; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; UnitedStates v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; and R. v.

Mentuck, , 2001 SCC 76, [2001] 3 S.C.R. 442. [32] Other cases, and particularly recently, have instead applied an administrative law/judicial review analysis in assessing whetherthe decision-maker took sufficient account of Charter values. This approach is seen in Baker; Trinity Western University v. BritishColumbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Chamberlain; Ahani v. Canada (Minister of Citizenship andImmigration), 2002 SCC 2, [2002] 1 S.C.R. 72; Pinet; Lake v. Canada (Minister of Justice), , 2008 SCC 23, [2008] 1 S.C.R. 761;Canada (Prime Minister) v.

Khadr, , 2010 SCC 3, [2010] 1 S.C.R. 44; Criminal Lawyers’ Association; and Németh v. Canada (Justice), ,2010 SCC 56, [2010] 3 S.C.R. 281. [33] The last decision of this Court to use the full s. 1 Oakes approach to determine whether the exercise of statutory discretioncomplied with the Charter was Multani. The academic commentary that followed was consistently critical. In brief, it generally argued

that the use of a strict s. 1 analysis reduced administrative law to having a formal role in controlling the exercise of discretion (seeGratton and Sossin, at p. 157; David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006), 21N.J.C.L. 127; Stéphane Bernatchez, “Les rapports entre le droit administratif et les droits et libertés: la révision judiciaire ou le contrôleconstitutionnel?” (2010), 55 McGill L.J. 641). [34] Since then, and largely as a result of the revised administrative law template found in Dunsmuir, this Court appears to havemoved away from Multani, leading to the suggestion that it may have “decided to start from ground zero in building coherence in publiclaw” (Gratton and Sossin, at p. 161).

Today, the Court has two options for reviewing discretionary administrative decisions thatimplicate Charter values. The first is to adopt the Oakes framework, developed for reviewing laws for compliance with the Constitution.This undoubtedly protects Charter rights, but it does so at the risk of undermining a more robust conception of administrative law. In thewords of Prof.

Evans, if administrative law is bypassed for the Charter, “a rich source of thought and experience about law andgovernment will be overlooked” (p. 73). [35] The alternative is for the Court to embrace a richer conception of administrative law, under which discretion is exercised “in lightof constitutional guarantees and the values they reflect” (Multani, at para. 152, per LeBel J.). Under this approach, it is unnecessary toretreat to a s. 1 Oakes analysis in order to protect Charter values. Rather, administrative decisions are always required to considerfundamental values.

The Charter simply acts as “a reminder that some values are clearly fundamental and . . . cannot be violatedlightly” (Cartier, at p. 86). The administrative law approach also recognizes the legitimacy that this Court has given to administrativedecision-making in cases such as Dunsmuir and Conway. These cases emphasize that administrative bodies are empowered, and indeedrequired, to consider Charter values within their scope of expertise.

Integrating Charter values into the administrative approach, andrecognizing the expertise of these decision-makers, opens “an institutional dialogue about the appropriate use and control of discretion,rather than the older command-and-control relationship” (Liston, at p. 100). [36] As explained by Chief Justice McLachlin in Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567,the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing anadministrative decision that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are appliedto an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attractdeference (para. 53; see also Suresh v.

Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39).When a particular “law” is being assessed for Charter compliance, on the other hand, we are dealing with principles of generalapplication [37] The more flexible administrative approach to balancing Charter values is also more consistent with the nature of discretionarydecision-making. Some of the aspects of the Oakes test are, in any event, poorly suited to the review of discretionary decisions, whetherof judges or administrative decision-makers.

For instance, the requirement under s. 1 that a limit be “prescribed by law” has been held bythis Court to apply to norms where “their adoption is authorized by statute, they are binding rules of general application, and they aresufficiently accessible and precise to those to whom they apply” (Greater Vancouver Transportation Authority v.

Canadian Federationof Students — British Columbia Component, , 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 53). [38] Moreover, when exercising discretion under a provision or statutory scheme whose constitutionality is not impugned, it isconceptually difficult to see what the “pressing and substantial” objective of a decision is, or who would have the burden of defining anddefending it. [39] This Court has already recognized the difficulty of applying the Oakes framework beyond the context of reviewing a law or otherrule of general application.

This has been the case in applying Charter values to the common law, “where there is no specific enactmentthat can be examined in terms of objective, rational connection, least drastic means and proportionate effect” (Peter W. Hogg,Constitutional Law of Canada (5th ed. Supp.), vol. 2, at

section 38.15). In R. v.

Daviault, (SCC), [1994] 3 S.C.R. 63, forexample, in assessing the common law rule relating to establishing intent under extreme intoxication, the Court held that no Oakesanalysis was required when reviewing a common law rule for compliance with Charter values: If a new common law rule could be enunciated which would not interfere with an accused person’s right to have control over theconduct of his or her defence, I can see no conceptual problem with the Court’s simply enunciating such a rule to take the place of theold rule, without considering whether the old rule could nonetheless be upheld under s. 1 of the Charter.

Given that the common lawrule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible toreformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should beundertaken. [pp. 93-94, citing R. v. Swain, (SCC), [1991] 1 S.C.R. 933, at p. 978.] [40] In Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, this Court explicitly rejected the useof the s. 1 Oakes framework in developing the common law of defamation for two reasons.

First, when interpreting a common law rule,there is no violation of a Charter right, but a conflict between principles, so “the balancing must be more flexible than the traditional s. 1analysis”, with Charter values providing the guidelines for any modification to the common law (para. 97). Second, the Court noted that“the division of onus which normally operates in a Charter challenge” was not appropriate for private litigation under the common law,as the party seeking to change the common law should not be allowed to benefit from a reverse onus (para. 98).

As a result, the Courtwent on to “consider the common law of defamation in light of the values underlying the Charter” (para. 99). And in Grant v. TorstarCorp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Court relied on Charter values in introducing the new defence of responsiblecommunication on matters of public interest to the law of defamation, without engaging in an Oakes analysis. [41] A further example is found in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., , 2002 SCC 8, [2002] 1S.C.R. 156, where the Court dealt with the common law of secondary picketing.

After concluding that freedom of expression wasengaged, the Court did not embark on an Oakes analysis. Instead, it found that the appropriate question was “which approach [toregulating secondary picketing] best balances the interests at stake in a way that conforms to the fundamental values reflected in theCharter?” (para. 65). [42] Though each of these cases engaged Charter values, the Court did not see the Oakes test as the vehicle for balancing whether

those values were taken into sufficient account. The same is true, it seems to me, in the administrative law context, where decision- makers are called upon to exercise their statutory discretion in accordance with Charter protections . [43] What is the impact of this approach on the standard of review that applies when assessing the compliance of an administrative decision with Charter values? There is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness ( Dunsmuir , at para. 58 ).

It is not at all clear to me, however, based on this Court’s jurisprudence, that correctness should be used to determine whether an administrative decision-maker has taken sufficient account of Charter values in making a discretionary decision . [44] This Court elaborated on the applicable standard of review to legal disciplinary panels in the pre-Dunsmuir decision of Law Society of New Brunswick v.

Ryan , , 2003 SCC 20 , [2003] 1 S.C.R. 247, where Iacobucci J. adopted a reasonableness standard in reviewing a sanction imposed for professional misconduct: Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a more deferential standard of review than correctness.

These factors suggest that the legislator intended that the Discipline Committee of the self-regulating Law Society should be a specialized body with the primary responsibility to promote the objectives of the Act by overseeing professional discipline and, where necessary, selecting appropriate sanctions . In looking at all the factors as discussed in the foregoing analysis, I conclude that the appropriate standard is reasonableness simpliciter.

Thus, on the question of the appropriate sanction for professional misconduct, the Court of Appeal should not substitute its own view of the “correct” answer but may intervene only if the decision is shown to be unreasonable. [Emphasis added; para. 42.] [45] It seems to me that applying the Dunsmuir principles results in reasonableness remaining the applicable review standard for disciplinary panels. The issue then is whether this standard should be different when what is assessed is the disciplinary body’s application of Charter protections in the exercise of its discretion.

In my view, the fact that Charter interests are implicated does not argue for a different standard . [Emphasis added.] [ 146 ] I am of the view that these teachings apply to the decisions of a minister as well, if the discretionary nature of the decision is recognized. The Minister of Education has significant expertise in the application of the statutes for which she is responsible.

In Lake , a case respecting a ministerial decision on extradition, the Supreme Court explains that the standard of review is not changed by the fact that constitutional rights are invoked. [69] [ 147 ] Thus, although the Minister answered an application that might include an aspect touching upon a Charter right, the standard of review does not change. It is not the constitutional validity of the statute or the regulations that are at issue here, but the decision itself. [ 148 ] When discussing the administrative aspect of the appeal, I concluded that the applicable standard of review is that of reasonableness.

That standard continues to apply under the constitutional aspect. (

c) Did the trial judge correctly find that Loyola could argue freedom of religion? [ 149 ] First, I reject the AGQ's argument that Loyola is pleading on behalf of a third party. Big M , [70] cited above, accepted that the right to share one's faith and religious doctrine is included in freedom of religion. [ 150 ] When Loyola brought proceedings to challenge the Minister's dec

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