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‘A Delicate Exercise’: Balancing Freedom for and Freedom from Religion in Canada: Loyola High School v Quebec (Attorney General)

  • M H Ogilvie (a1)

Extract

In Loyola High School v Quebec (Attorney General) the Supreme Court of Canada (SCC) found that a Roman Catholic high school run by the Jesuits in Montreal, could be exempted from the provincial Ethics and Religious Culture Program (ERCP), legislatively mandated for all schools in Quebec, whether public or private, provided it offered an ‘equivalent program’, if from a Roman Catholic perspective. In the earlier companion case, SL v Commission scolaire des Chênes, the Court held that religious parents could not claim an exemption for their children enrolled in the public schools from the same course. This discrepancy between the legal treatment of children in fee-paying religious schools and children in the public school system is one of several interesting aspects of the Loyola decision which this comment will address. Notwithstanding this discrepancy, the Court also restated its earlier observations about the nature and meaning of section 2(a), ‘freedom of conscience and religion’, of the Canadian Charter of Rights and Freedoms (the Charter), thereby reassuring some Canadian observers that it is committed to a more robust protection of freedom of religion than may have been surmised from its earlier freedom of religion jurisprudence. Equally interesting is that, in coming to its decision, the majority of the Court moved away from the Court's earlier approach to freedom of religion issues of applying first section 2(a) and then section 1 of the Charter, which operates as a brake on full freedom of religion, to a proportional analysis more in tune with proportionality tests for religious freedom found in English and European cases. Whether this is the start of a long-term trajectory in Canadian freedom of religion cases or a single instance remains to be seen.

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1 2015 SCC 12 (CanLII).

2 2012 SCC 7 (CanLII). For a comment, see M Ogilvie, ‘What's sincerity got to do with it? Freedom of religion in Canada’, (2012) 14 Ecc LJ 417–425.

3 The following description is drawn from the majority decision of Abella J in Loyola at paras 10–17.

4 2010 QCCS 2631 (CanLII).

5 2012 QCCA 2139 (CanLII).

6 Loyola at para 34.

7 Edmonton Journal v Alberta 1989 CanLII 20; Hunter v Southam Inc 1984 CanLII 33; R v CIP Inc 1992 CanLII 95.

8 Loyola at paras 95–99, also noting international protections for collective rights to freedom of religion.

9 Ibid at para 102.

10 Ibid at para 100.

11 2012 SCC 12 (CanLII).

12 Loyola at paras 36–48.

13 Ibid at para 54.

14 1985 CanLII 69 (SCC).

15 Loyola at paras 58–64.

16 Ibid at para 73.

17 Ibid at paras 58–80.

18 Ibid at para 81.

19 Ibid at paras 43–46.

20 Ibid at paras 103–112.

21 Ibid at para 114.

22 Ibid at paras 128–129.

23 2006 SCC 6 (CanLII).

24 Loyola at para 134.

25 Ibid at paras 135–140.

26 Ibid at paras 141–145.

27 Ibid at paras 146–151.

28 Ibid at paras 152–162.

29 Ibid at para 164.

30 [1986] 1 SCR 103.

31 See M Ogilvie, ‘And then there was one: freedom of religion in Canada: the incredible shrinking concept’, (2008) 10 Ecc LJ 197–204; Ogilvie, ‘What's sincerity got to do with it?’.

32 See SL v Commission scolaire des Chênes, for example.

33 A number of TWU graduates in arts and sciences who have studied law elsewhere already do practise law across the country.

34 The Nova Scotia Barristers' Society has announced that it will appeal the decision.

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