Organizations Get Religion: Loyola High School v. Quebec

Introduction

Do organizations and corporations have a constitutionally protected freedom of religion under the Canadian Charter of Rights and Freedoms?

The Charter has existed for 34 years and we are still not clear whether non-human entities enjoy religious freedom as they do other freedoms, such as expression. The Supreme Court of Canada last year had an opportunity to answer that in Loyola High School v. Quebec [http://canlii.ca/t/ggrhf]. It took a small, but important, step in that direction.

The Individual Nature of Charter Freedoms

The Charter rights and freedoms were intended for human beings. There are collective, public interest dimensions in how they operate, such as in the limitations clause (section 1) and the override clause (section 33). Many freedoms require a balance of individual and public interests on reasonableness grounds. Pierre Trudeau wrote that “only the individual is the possessor of rights.” Chief Justice Dickson said the purpose of religious freedom was to ensure that “every individual be free to hold and manifest whatever beliefs and opinions his or her conscience dictates…” Section 28 of the Charter suggests that it is only intended to apply to human beings: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

On the other hand, section 2 rights and freedoms are granted to different legal persons. In some cases, the right is conveyed to “everyone” (the freedom of religion is included in this group), to “any person”, to “every citizen”, to “any member of the public in Canada”, and to “every individual.”

The Supreme Court of Canada was unanimous in the outcome that Loyola’s and its community members’ religious freedoms were violated, but the judges were divided on the issue of independent religious rights for the incorporated Loyola entity. It has been established for well over a century that corporations are “legal persons” (though they are not citizens or individuals) and enjoy the same status as human beings. Therefore, freedoms conferred on “persons” and “everyone” should belong equally to human beings and companies. The Charter freedoms of expression, freedom from unreasonable search and seizure and trial within a reasonable time are already conferred on companies. What about the freedom of religion?

But the law is never that simple. Some Charter rights marked for “everyone”, such as the right to life, liberty and security of the person (section 7), have been held by the Supreme Court of Canada to be unavailable to corporations. The Court said: “only human beings can enjoy these rights. ‘Everyone’ then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings.”

In the words of the Irwin Toy decision, it must not be “nonsensical to speak of a corporation [having a religion]” and the idea of a corporation subscribing to a religion should not “stretch the meaning of [religion] beyond recognition . . . That is, read as a whole, it [must not] appear that this section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase “Everyone has the [freedom of religion]” serves to underline the human element involved; only human beings can enjoy these rights. [Should] “everyone” then, be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying [religion], and include only human beings?”

It is plausible that Canadian courts would no more find a non-cognitive, non-sentient corporation capable of a conscience or religious belief than its non-physical existence is capable of imprisonment. As Dickson C.J. stated in Edwards Books, religion is about “profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices.” It is hard to imagine business corporations (themselves legal fictions) having any religious dogmas “to connect with the divine or as a function of [its] spiritual faith.”

Despite “everyone” having freedom of religion in Canada, business corporations and other non-human legal persons generally do not appear to have a strong argument in favour of an independent constitutional freedom of religion in Canada. What about religious organizations?

The Loyola Case

Loyola is an incorporated non-profit Catholic high school in Montreal. The Quebec government mandated a secular program of studies, the Ethics and Religious Culture course (“ERC”), to be taught in all school. ERC required teachers to be objective and impartial when presenting the course, although private schools like Loyola could request and receive an exemption if the Minister decided that an “equivalent” program was offered.

Loyola objected to being neutral about its Catholic doctrines and sought the exemption. It wanted to teach the ethics of its own religious tradition from the Catholic perspective. The exemption was denied and Loyola went to court claiming, “the religious nature of the school prevented it from teaching Catholic beliefs or other religions from a neutral or detached perspective” and the denial of the exemption was a breach of Loyola’s freedom of religion under section 2(a) of the Charter.

The Supreme Court of Canada was unanimous in the outcome that Loyola’s and its community members’ religious freedoms were violated, but the judges were divided on the issue of independent religious rights for the incorporated Loyola entity. The four-judge majority spoke vaguely about religious community, saying “the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.” The majority spoke of communal aspects of religious beliefs and practice, such as the transmission of faith. It said: “religious freedom under the Charter must therefore account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.” But it concluded it was not “necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter . . . in order to dispose of this appeal.”

It is hard to imagine business corporations (themselves legal fictions) having any religious dogmas “to connect with the divine or as a function of [its] spiritual faith.”The three concurring judges would have characterized Loyola as a religious corporation with its own right to freedom of religion, pointing out that “the 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.” These judges reasoned that protecting the religious freedom of individuals sometimes requires the assertion of religious freedom claims by their affiliated religious institutions, such as Loyola in this case. They would assign section 2(a) protection of religious beliefs to non-human entities which are created primarily for religious purposes and operate according to the same religious purposes.

Conclusion

Three judges of the Supreme Court of Canada have now opened the door to extending religious freedoms to non-human religious organizations. They decided that inanimate things, indeed mere creations and fictions of the law, can possess religious belief and conviction worthy of constitutional protection. This proposition, if it is to be elaborated in the future, will need to answer many more questions, such as:

• what “religious purposes” are,
• whether for-profit religious organizations and even a secular or atheist organizations would qualify, and
• how to deal with internal dissent within the religious organization, as all members of religious communities may not hold the same religious beliefs and agree on interpretations.

This preliminary analysis by the concurring minority in Loyola is poised to serve as the foundation for a more nuanced analysis of a constitutional freedom of religion for religious organizations in the future.