jeudi 8 juillet 2010

Brief Legal Summary of the Loyola Ruling by Justice Dugré

Loyola High School v. Courchesne, Superior Court (S.C.), Montréal, QC, CANADA, 500-17-045278-085, Justice Gérard Dugré, judgment rendered On June 18, 2010 and reported at 2010 QCCS 2631, SOQUIJ AZ-50647607, 2010EXP-2071, J.E. 2010-1137 (91 pages).

Motion to quash a decision rendered by the Quebec Minister of Education, Recreation and Sports, and application to be exempted from the Ministerial Ethics and Religious Culture (ERC) program on the grounds that the school teaches that subject using its own program. Granted.


The applicant, Loyola High School, is a Jesuit-administered Catholic confessional educational institution. Loyola filed an application to be exempted from teaching the Ministerial ERC program under the first paragraph of section 22 of the Regulation respecting the application of the Act respecting private education because it is incompatible with its mission and convictions, primarily because it inculcates a relativist philosophy commonly called "normative pluralism". It applied for the exemption on the grounds that it dispenses an equivalent program. The Minister of Education, Recreation and Sports dismissed its application, hence the action instituted by Loyola. The Minister asserts that she has broad discretion under the first paragraph of section 22 of the Regulation and that her decision is reasonable and should not be quashed. Regarding the issue of freedom of religion, she states that because Loyola is a legal person, it cannot allege infringement of freedom of religion. She argues that her ERC program does not infringe Loyola's freedom of conscience and of religion and, even if such an infringement occurred, it is warranted in a free and democratic society.


The exemption provided for in the first paragraph of section 22 of the Regulation is automatic if an equivalent program is dispensed by the educational institution. The word "equivalent" must be construed in accordance with their ordinary meaning. The Minister is not competent to define the term "equivalent" or to determine criteria of equivalence. She only has a non-discretionary power, namely to decide whether or not Loyola's program is, within the ordinary meaning of the word, "equivalent" to the program established by the Minister. In the case under consideration, if the Minister decides erroneously that a program is not equivalent, she has exceeded her jurisdiction. Therefore, the standard of judicial review to be applied to her decision is the correctness of her decision. Four of the six grounds of the impugned decision are based on the distinction between the ERC program approach, which is cultural, and the Loyola program approach, which is confessional. The four grounds raised by the Minister are erroneous and amount to an excess of jurisdiction. The ordinary meaning of the word "equivalent" does not involve any such distinction or exclusion.

The power delegated to the Minister under the Regulation is the power to "judge", not the power to "legislate". She is not empowered to define standards of equivalence or to delegate a power that she does not have to the civil servants who reviewed the application for exemption. She failed to take into account highly relevant facts, namely that the program is dispensed by a private Catholic confessional school and that the parents and students of that school want all courses to be taught in accordance with the precepts of the Catholic church and the Catholic religion.

The Minister refused to grant the exemption on the grounds that in granting an exemption she would be authorizing a mandatory course in religion thereby contravening the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms. Her refusal is wrong and unreasonable, firstly because it is premature to presume that had she granted the exemption applied for, there would be contestations based on the charters, and secondly because the values of the charters must be taken into account only where the wording of a statute is ambiguous, which is not the situation in this case. Even in the event of ambiguity, the combined effect of the principles stated in sections 3, 41, 42, 52, 53, 54 and subsection 56 (3) of the Québec Charter confirm Loyola's entitlement to the exemption under the first paragraph of section 22 of the Regulation, because such quasi-constitutional provisions in regulatory measures must be construed and applied as they are written. The two other grounds raised by the Minister in her decision, namely the acquisition of skills in dialogue, and the teacher's role, are pretexts. A reading of the exhibits tendered into evidence unequivocally confirms that the program dispensed by Loyola covers both aspects. Moreover, the Minister could not add laicity as a prerequisite to program equivalency. She applied an irrelevant consideration; it is the program that must be equivalent or comparable, not the manner in which the mandatory ERC content is taught.

Notwithstanding that since enactment of a 1997 constitutional amendment, confessional schools are no longer entitled to constitutional protection, the Québéc legislator has allowed schools to retain their confessional recognition. The Minister may require a public secular school to teach the ERC program in a secular manner, but she cannot prevent a private confessional school from dispensing ERC according to confessional precepts.

Application of correctness as the standard of judicial review requires that this Court determine if both programs are "equivalent" within the meaning of the first paragraph of section 22 of the Regulation. The word "equivalent", used as a qualifying adjective in that paragraph, commonly means, "that which has the same value or function". In using that word, the government has not required that both programs be the same. The content of both programs is similar, if not the same. The objectives are similar, hence equivalent. The skills of dialogue targeted by both programs involve two interactive aspects, namely internal deliberation and the exchange of ideas with others. The ERC program's secular approach and the Loyola program's Catholic confessional approach cannot prevent a finding of program equivalency. The cultural approach promoted by the ERC program is not in any manner incompatible or irreconcilable with the confessional approach required by Loyola's religious precepts.

The Minister argued that were she to approve Loyola's confessional program, she would be making a course in religion mandatory, in contravention of the charters. That argument is unfounded and indicates an excess of jurisdiction in her decision because, on that legal basis, she has excluded a confessional program for teaching ERC in a private Catholic school from the definition of the word "equivalent", from the outset and without any evidence or complaint. As regards the constitutional aspect of the decision, the Supreme Court of Canada has yet to rule on the right of a legal person to invoke freedom of religion under the Canadian charter. However, as the impugned decision emanates from a Québéc minister and is based on a Québéc regulatory provision, the Court should limit itself to application of the Québec Charter. The proper standard of judicial review is correctness of the impugned decision given that this is a review of a ministerial decision conducted in light of the principles set forth in the Québec Charter.

Loyola is a non-profit company incorporated under Part III (ss. 216 to 233) of the Companies Act. The attribute of legal personality should not deprive a group or grouping of persons of the fundamental rights protected by the charters.

Freedom of religion and freedom of religious expression are an integral part of the fundamental basis of the primacy of the law, a principle that benefits all persons and is not limited solely to human beings. In section 3 of the Québec Charter, the legislator used the word "person" and not the term "human being". Moreover, the designation "person" is defined by the Québéc legislator as including natural and legal persons. That section of the Charter included legal persons such as Loyola. The school asserts the right to teach the mandatory ERC subject matter in the general secondary curriculum using its own confessional program. That right, like freedom of religious expression, is included in the expression "freedom of religion" and is therefore protected by the Québec Charter. Loyola students and parents must sign an undertaking to the college that covers the religious aspect. Parents must exercise their parental authority, which includes education and religion, in the greater interests of their children.

The Québec Charter recognizes the parental right to ensure the religious and moral education of their children in accordance with their convictions. That right is not limited to the home and places of worship. It must be interpreted as including the private educational institution in which parents choose to have their children educated and instructed. No statutory standard prevents Loyola from being a Catholic confessional educational institution. It should therefore be allowed to teach all subjects in accordance with the catholic confessional approach.

In Syndicat Northcrest v. Amselem (S.C. Can., 2004-06-30), [2004] 2 S.C.R. 551, the Supreme Court held that, to trigger freedom of religion, the applicant must demonstrate that he or she sincerely believes in a practice or belief that has a nexus with religion and that the impugned conduct of the third party amounts to a non-trivial or non-insubstantial interference with the exercise of that practice or belief. In the case under consideration, Loyola and its members are sincerely convinced that to fulfil its mission as a Catholic confessional educational institution, the school must teach ERC using its own program and in accordance with Catholic precepts. The Minister's decision qualified in light of Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component and British Columbia Teachers’ Federation (S.C. Can., 2009-07-10), [2009] 2 S.C.R. 295, is not a rule of law and therefore cannot be protected under section 9.1 of the Québec Charter.

In addition, the trivial infringement test is not satisfied in the case under consideration. The Minister had several solutions available to her to avoid infringing a right protected by the Québec Charter. Moreover, according to the reasoning of Justices Deschamps and Abella in Multani v. Commission scolaire Marguerite-Bourgeoys (S.C. Can., 2006-03-02), [2006] 1 S.C.R. 256, recourse to a constitutional law justification is not appropriate where, as in the case under consideration, what must be assessed is the propriety of an administrative body’s decision relating to human rights.

Lastly, to allow the Minister to attempt to justify her decision would in itself result in an excess of jurisdiction. Her decision is therefore quashed. It is hereby declared that pursuant to the first paragraph of section 22 of the Regulation, Loyola is exempted from being required to use the program established by the Minister to teach the mandatory subject of ERC.

Lastly, Loyola is hereby authorized to teach ERC using its own program.

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