On December 4, 2012, the Quebec Court of Appeal held in favour of the Quebec Ministry of Education regarding the Ethics and Religious Culture (ERC) curriculum, which opposed them this time to Loyola High School, a private Catholic school. Loyola was asking to be exempted from teaching the curriculum set by the Ministry, and to substitute in its place the school’s own world religions and ethics course.
Briefly stated, the ERC Program covers a broad range of world religions, with particular emphasis on Quebec's religious heritage: Catholicism, Protestantism, Judaism, aboriginal spirituality, as well as 'pseudo-religions' such as atheism. It is taught from Grade 1 through Grade 11 (elementary to secondary school).
Overview of this case
In 2008, Loyola sought to teach its own world religions and ethics course instead of the mandatory ERC, and made a request for exemption to the Quebec Minister of Education. After analyzing the program, the Minister of Education determined that the Loyola course on world religions and ethics was not equivalent to the ERC because the Loyola course taught from a Catholic standpoint. The Minister ordered Loyola to teach the ERC from a neutral and more objective perspective, in accordance with the aim of the ERC: to foster tolerance and dialogue in pursuit of the common good.
Loyola promptly filed a claim with the Quebec Superior Court, asking for a review of the Minister’s decision on two grounds: first, of administrative law (concerning the manner in which courts can review the decisions of administrative decision-makers such as a board, tribunal, commission, agency or minister; In short, the standard of review depends on the power afforded to the Minister under section 22. 1 du Règlement d'application de la Loi sur I'enseignement privé), and second, of constitutional law (whether the decision of the minister infringes on the freedom of religion guaranteed under s. 2a of the Canadian Charter of Rights and Freedoms or s. 3 of the Quebec Charter of Rights and Freedoms? If so, is this infringement justified by the application of section 1 of the Canadian Charter or s. 9.1 of the Quebec Charter?).
Loyola asked the Court that they be allowed to teach their alternative program instead of the ERC, alleging that this program is incompatible with Catholic beliefs. The school also claimed the ERC is not really neutral because it promotes an ideology of relativism, "normative pluralism". The fundamental principles of this philosophy, trivialize and deny for all purposes the experience and the practice of religious belief.
According to Loyola, its program is equivalent to that established by the Minister thus, the right to be provided with an exemption under section 22 (1) du Règlement d'application de la Loi sur I'enseignement privé should be automatic.
The Quebec Minister of Education argued that they hold a very broad discretionary power under section 22 (1) that its decision is reasonable and therefore, it should not be invalidated by the court.
The judge positioned the issues raised by this case as follows:
The Minister wants the ERC program to be taught in a secular way, while Loyola wants to teach it under confessional methods in order to comply with the precepts of the Catholic religion. This leads to the following question: can the state deconfessionalize the teaching of religion and morality within the walls of a private Catholic school?
The trial judge also stated, by way of introduction,
The answer to this question involves, in particular, the constitutional principles of the supremacy of God and the rule of law." [translated by me from French; La réponse à cette question met en cause, notamment, les principes constitutionnels de la suprématie de Dieu et de la primauté du droit.]
Douglas Farrow, of McGill University’s Department of Religious Studies, an expert in theology and religion, and who gave a testimony that was not disputed, stated to the Judge’s previous statement during the trial,
… first, that the Ethics and Religious Culture (ERC) program represents a significant transfer of power from civil society to the state; second, that its ambitious goals belie any claim to neutrality; third, that the ERC program is intended to provide formation (i.e., to cultivate a world view and a way of thinking and acting consistent with that world view) and not merely information, and that the formation it hopes to provide is at points incompatible with a Catholic formation; fourth, that the imposition of this curriculum (with its mandatory pedagogy) on Catholic schools constitutes, from the perspective of the Catholic Church, a breach of fundamental rights as well as a defeat for certain of the program' own objectives in recognizing diversity. (Excerpted page 6 )
Superior court decision
After careful analysis, the trial judge found in favour of Loyola, holding that the decision of the Minister must be negated as it is both erroneous and unreasonable. The court also found that the Minister’s decision violated Loyola's right of freedom of religion and freedom of expression protected by s. 3 of the Quebec Charter of Rights and Freedoms. Therefore, Loyola must be granted the exemption. Contrary to the Minister of Education's argument, Loyola is not trying to remove itself from providing the government's mandatory ERC program, but in fact is trying to implement a program equivalent to the government's mandatory program that is better suited to their mission and does not contravene the Catholic faith.
In the court's opinion, the minister erroneously interpreted Loyola's application for exemption as a derogation request.
In addition, the exemption contained in section 22.1 is not discretionary, but automatic, referring to the English version which state "shall be exempt." Also, in its rules the government did not define on what terms the ERC should be carried out, nor did they define “equivalent” under the purposes of their mandate. Thus, it must be interpreted in general and normal terms, in a way to ensure the validity and to give it full effect. The Minister has not, however, as the court understands the statute, been empowered, arbitrarily or otherwise, to vary the ambit of the exemption.
The Minister only has the power to make a judgment, namely to examine if the program offered by Loyola is equivalent to the program established by the Minister, according to the ordinary sense of the term. The Minister used the wrong criteria to decide what equivalence meant and under what conditions an exemption may be granted. Under the law as written, the Minister may not erroneously conclude the absence of equivalence without exceeding its competence.
The trial judge found it
surprising "that Quebec’s Ministry of Education had assumed what he called a totalitarian character essentially equivalent to Galileo’s being ordered by the Inquisition to deny the Copernican universe."
Needless to say, the Quebec Minister of Education appealed.
Decision from the Quebec Court of Appeal
The Quebec Court of Appeal based its decision on last February's Supreme Court of Canada ruling (previously noted on Slaw) in another case, where the highest court refused to find that the mandatory nature ERC curriculum infringes on the parents’ and the students’ freedom of religion. Specifically, the court found teaching children about ethics and world religions does not infringe on the freedom of parents seeking to raise their children as Catholics. The Quebec Court of Appeal overturned the above lower court decision.
"The program offered by Loyola seems to target the teaching content similar to that of the Ministry, but the perspective adopted is unquestionably religious,” wrote judge Jacques Fournier, whose decision was supported by judges Allan Hilton and Richard Wagner.
The judges noted in their ruling that teachers are not being asked to
refute the teachings of the Catholic religion, but to refrain from expressing their opinion or belief.
In the long run, this judgment strongly reinforces the discretion of the Quebec Ministry of Education to decide what an equivalent program is. That competence has not been exercised for purposes other than those prescribed by law and regulations. The decision of the Minister is reasonable, and does not infringe on a protected right.
According to Patrick Andries, secretary for la Coalition pour la liberté en éducation, CLÉ., when speaking to various media outlets,
this raises the bar for private schools who oppose the ideology or the pedagogy set out in the curriculum by the Ministry.
Loyola is deciding whether to seek leave to appeal this decision to the Supreme Court of Canada.
This tension around this ruling raises a few questions both for Quebec residents, and Canadians across the country. In a country where cultural pluralism is not only commonplace, but encouraged and nurtured, should schools be allowed to skew a world religion program to meet its own particular bias? What would the parameters of accommodating an amended curriculum entail? In teaching religious principles, the issue has a different set of concerns than other subjects might, perhaps, as tenets of a religion are presented as a universal truth and moral code. While there is some room for questioning and challenging these principles, integrating the teachings of other religions would require particular care. Regardless, students do need to learn about other faiths as they would learn about other languages and countries. Perhaps like learning about the existence of another language, however, students should be introduced to these ideas without the anticipation that they will forget everything they have learned before.
What do you think about the Quebec Court of Appeal’s ruling in this case? How could the law be more specific in its attention to the ERC curriculum?