The Supreme Court of Canada released today its long-awaited decision in the Loyola High School case, 2015 SCC 12, and I’m looking forward to an informal discussion on the case this afternoon with some University of Alberta faculty colleagues during one of the latter days of my visit here. And there will be much discussion of this case in the time ahead, but I am going to put down some preliminary thoughts right now:
In the case, the Supreme Court holds that there was a violaton of religious freedom rights when Quebec refused to grant an exemption to a Catholic high school from a requirement to teach a secular religion and ethics course in an entirely neutral manner. The case marks a significant vindication for religious freedom in a case where many were not sure where the Supreme Court would go in light of its own past decision in S.L. concerning a differently framed challenge by individuals in a public school to the same legislation.
However, there is a complex split in the case, with the reasoning split between a four-judge majority judgment of Justice Abella (with LeBel, Cromwell, and Karakatsanis JJ. suporting it) and a three-judge concurring judgment by Chief Justice McLachlin and Justice Moldaver (with Rothstein J. supporting their judgment). [As a footnote, I might note that the case was heard in March 2014 a few days after the Court had ruled Justice Nadon’s appointment to their Court invalid, so the Court had no reasonable option but to sit as a panel of seven – what would have happened with nine justices will remain forever unknown.]
The ways the two groups diverge are complex, interesting, and may impact on future cases (and require more argument to sort through):
(1) Justice Abella is able to strongly reaffirm her previous case law in support of a collective dimension to religious freedom with extra material in support (passage around para. 60), while the other judgment is trying to piece through various strands of case law, including Justice Abella’s previous dissent, to try to show that they are reaffirming a support for collective dimensions to religious freedom (around 92-93).
(2) However, Justice Abella does not go so far as to recognize religious freedom held by corporations, suggesting that this is unnecessary to decide for the case (33), while McLachlin CJ and Moldaver J are ready to affirm that some corporations hold religious freedom rights (95), though subject to a test that offers this right mainly to corporations with a religious purpose and acting in accord with that religious purpose (100, with 138 making clear they don’t necessarily see other corporations having such rights).
(3) Justice Abella tries to deal with the case in terms of the Doré analysis of uses of statutory discretion (36ff), while Chief Justice McLachlin and Justice Moldaver go directly to a freedom of religion analysis of the decision made (113).
(4) Justice Abella would actually allow more balancing of considerations and suggests that a requirement to teach about other religion in a neutral way may not actually be unconstitutional in every circumstance (71) whereas Chief Justice McLachlin and Justice Moldaver see a requirement that Catholics teach about Catholicism neutrally as a more direct freedom of religion violation (143).
(5) As a result of these differences, Justice Abella would send matters back to the Quebec Minister for reconsideration in light of the reasons, whereas Chief Justice McLachlin and Justice Moldaver would immediately grant an exemption for Loyola High School so as not to impose further delay on it having a remedy (165).
There will be more to sort out in the time ahead, but these are some thoughts on some differences in the judgments. That said, importantly, all the justices are effectively aligned in strongly affirming that a religious community has a right within freedom of religion to continue its existence through education and teaching and that a secular state must respect religious communities.
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