The following is extracted from my chapter “Human Dignity Found in Religious Community,” in The Inherence of Human Dignity Vol. 2: Law and Religious Liberty, edited by Barry W. Bussey and Angus J. L. Menuge (Anthem Press, 2021).
In 2008 the province of Quebec implemented a mandatory core curriculum that included the course Ethics and Religious Culture (ERC) which sought to teach beliefs and ethics of different world religions from a neutral and objective perspective. That is a tall order for any government to attempt as governments can never be totally neutral in religious ethics, even if the law requires neutrality to prevent favouring one religion over another. The ERC had three components: world religions and religious culture, ethics, and dialogue. It was meant to be secular and cultural, and the teachers were required to be objective and impartial.
Loyola High School, being a Roman Catholic school, objected to the ERC’s requirement that its teaching of the Catholic faith must be secular and that its teachers were to be objective and impartial. Loyola was willing to teach other religions objectively and respectfully but on ethical matters it would emphasize Catholic teaching. Further, it could not agree to their teachers being strictly neutral as the ERC required. Therefore, it sought an exemption from the Quebec government. The government refused. Loyola went to court for judicial review of Quebec’s decision.
Justice Rosalie Abella wrote the majority decision and applied an analysis of ‘Charter values’ in determining whether the Quebec government’s refusal was unreasonable. The Court’s ‘Charter values’ process, known as the Doré analysis (2012), is a recent evolution of its approach in reviewing government Charter rights infringement in regulatory matters. It gives the government greater deference when it makes discretionary administrative decisions. In other words, it is easier for the government to justify violations of the Charter in the guise of public interest. It has, in my view, greatly solidified the Court’s Hutterian Brethren sentiment but with a different legal analysis.
Abella held that Quebec’s refusal to allow Loyola an exemption to teach the Catholic faith from a Roman Catholic perspective was ‘a disproportionate, and therefore unreasonable interference with the values underlying freedom of religion of those individuals who seek to offer and who wish to receive a Catholic education at Loyola’ (para 6). However, she went on to hold that there was no impairment of Loyola’s freedom of religion to require Loyola ‘to offer a course that explains the beliefs, ethics and practices of other religions in as objective and neutral a way as possible, rather than from the Catholic perspective’ (para 6). It seems, at least on the face of the matter, improbable that a private religious school could be expected to teach a course about another religious community’s beliefs, ethics and practices in a way that would be entirely neutral. Is it not the case that we would expect a sectarian school, by its very nature, to be unable to present beliefs, including those that go contrary to its very identity, in a neutral manner? However, it is possible to speak respectfully of differing beliefs while still not endorsing them as being equally acceptable or valid: that is, the school could most certainly teach other religions in a way that affirms the dignity and worth of all humans (regardless of what they believe).
In arriving at her decision Justice Abella did not think it necessary to address the issue of ‘whether Loyola itself, as a corporation, enjoys the benefit of s. 2(a) rights, since the Minister is bound […] to exercise her discretion in a way that respects the values underlying the grant of her decision-making authority, including the Charter-protected religious freedom of the members of the Loyola community’ (34). The Court’s failure to address the communal rights of Loyola was a missed opportunity to clarify the religious freedom rights of religious communities distinct from those of the community’s individual members.
As noted earlier, there is confusion about the extent of religious communal rights in Canadian law. It is surprising that Abella, who expressed such strong support for communal rights in the Hutterian Brethren decision, would not capitalize on this opportunity. Instead, her reasoning is less enthusiastic toward religious communities. Now she expects them to set aside their religious views for ‘national values.’ A preview of her thinking on ‘national values’ came during oral argument when she asked Loyola’s counsel, ‘is any religion’s view of its own ethical framework to be held to be secure from the obligation to teach this course? Does it matter for instance if the particular religion teaches an ethical framework which contradicts what we have said about the Charter, if it has views that are fundamentally opposed to what we consider national values?’ (Loyola Transcript 2014, p. 7, ll. 16-22).
While state neutrality permits religious pluralism, she says, that ‘does not mean that religious differences trump core national values’ (para 46). In her words, ‘These shared values – equality, human rights and democracy – are values the state always has a legitimate interest in promoting and protecting. They enhance the conditions for integration and points of civic solidarity by helping connect us despite our differences’ (para 47). Meanwhile, ‘Religious freedom must therefore be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights’ (ibid). Abella then noted that the state ‘has a legitimate interest in ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect as they confront cultural and religious differences’ (para 48, emphasis original).
One does not have to think too hard to find scenarios where ‘national values’ may be at odds with long-held and long-understood religious norms. This is especially true when we consider the struggle that religious communities face when hiring or firing individuals who do not share their religious norms; or, as seen in the TWU law school case, when religious communities wish to maintain certain standards of behaviour for members of a church or students at a religious school. ‘National values’ of ‘equality’ and ‘human rights’ can be used by the courts to force such communities to hire those who do not subscribe to the beliefs of the religious employer; or to accept those who want to attend religious schools or universities yet oppose religious teachings. While there are exemptions for religious communities in human rights legislation, we now know, as in the TWU law school case, the courts are prepared to ignore such protections. Ironically, in the name of diversity, everyone must accept the Court’s ideology of what ‘diversity’ means.
For Justice Abella, these ‘values’ enhance ‘integration’ and ‘civic solidarity’ by ensuring that we connect despite our differences. There can be no doubting that a multicultural society needs to have means of creating a civic understanding of mutual responsibilities. Religious communities, by their nature, tend to be absolutist in their truth claims – as Loyola demonstrated. However, that is increasingly coming under scrutiny by a secular society that is intolerant of difference. Unfortunately, Abella’s ‘national values’ do not seem to include respect for each other’s differences, even though we may subscribe to mutually exclusive religious understandings. Rather, these national values appear to advocate for a syncretisation of views with the state. The irony is that Abella appears to be saying that respecting diversity means that we must all agree with the state’s ‘national values’. Hardly diverse. That is not liberal democracy – at least not what we once understood as such.
In a very strange twist, it was Chief Justice McLachlin (along with Justice Moldaver) who came out supporting communal rights to religious freedom. Given McLachlin’s appalling lack of support for the Hutterian Brethren community’s religious freedom, her apparent change of heart was notable. Unfortunately, her later decision in the TWU cases showed that such a change of heart was short-lived indeed.
McLachlin and Moldaver JJ held that Loyola could rely on the right of religious freedom. They asserted, ‘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. Canadian and international jurisprudence supports this conclusion’ (para 91). They referenced Abella and LeBel in Hutterian Brethren and noted that, ‘[t]he individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith’ (para 94). In their view it resembles freedom of expression, freedom from unreasonable search and seizure and trial within a reasonable time which applies to corporations (ibid).
The dissenting judges further emphasized the fact that international human rights instruments recognize the communal character of religion, such as Article 18 of the Universal Declaration of Human Rights (1948), Article 9 of the European Convention on Human Rights, and Article 18 of the International Covenant on Civil and Political Rights. They point out, since the Charter should be presumed to have the same level of protection as found in the international human rights documents that Canada has ratified, ‘[i]t follows that the collective aspect of freedom of religion should find protection under the Charter’ (para 97).
McLachlin and Moldaver ‘conclude that an organization meets the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes’ (para 100). After finding that Loyola met these requirements, they held that Loyola’s right was infringed by Quebec and that it was not reasonable. They would not require, as did the majority, that the matter go back to the government ministry for re-evaluation but would grant Loyola the remedy of overturning the government’s decision and the exemption it requested.
Given the favourable Loyola decision there was, within the religious communities, a sense of optimism that finally the SCC was open to recognizing and articulating the boundaries of the communal right of religious freedom. While the majority did not address the issue, as they deemed it unnecessary, they nevertheless recognized the communal aspects of the right. Further, McLachlin and Moldaver set forth a road map for a future court to establish the right on a more secure footing. The Trinity Western University law school case in 2018 seemed to be the ideal case to deal with this issue. But, alas, it was not to be due to the political nature of the issue at hand.
 Note Professor Perry’s observation regarding Bruce Ackerman’s (1980) position on government neutrality, ‘the justification of government’s choice to be neutral between two competing positions – or the justification of its choice not to be neutral, or, indeed, the justification of any contested choice government makes with respect to any matter at all – cannot possibly be neutral among all competing conceptions of human good, if, as will invariably be the case with respect to real-world political controversies: according to some conceptions of human good (at least one) it is good for us, qua political community, to do one thing (e.g., be neutral between the contending positions) while according to other conceptions (at least one) it is good for us to do something else (e.g., forsake neutrality for partially). In contending for one or another contested choice, the justification must side with – it must ratify or affirm – one or another competing conception of the good. There is simply no way for political justification to avoid such partiality and achieve the neutrality Ackerman seeks.’
 Professor Gamwell points out that ‘every political decision takes sides among religions, because it implies some judgment about the character of religious truth. As long as the body politic decides not to proscribe abortion, for instance, it decides implicitly against the religious convictions of the Moral Majority and (at least some of) the Roman Catholic Church’ (Gamwell 1982, 281).
 Justice Gascon held that the state has ‘a duty of religious neutrality,’ in that the ‘state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others. It follows that the state may not, by expressing its own religious preference, promote the participation of believers to the exclusion of non-believers or vice versa’ (para 75). Further, the ‘state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. It is prohibited from adhering to one religion to the exclusion of all others’ (para 76). Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII),  2 SCR 3, <http://canlii.ca/t/gh67c>, retrieved on 2020-04-22.