Arguments have begun in what, for faithful Christians, is one of the most important cases ever to come before the Supreme Court of Canada: at issue, is the fundamental right of Canadians to have their children educated in accordance with the basic principles of Christian faith and morality.
This matter has been brought before the Court by the relentlessly secular government of Quebec, which, in 2008, imposed a compulsory course in Ethics and Religious Culture (ERC) on every school, public and private, in the province. in guidelines for the course, the Quebec education ministry has stipulated that a key objective of the ERC is “the promotion of tolerance and respect for all,” by providing students with objective information about contrasting ethical judgments and religious beliefs.
No Christian school would have any objection in principle to presenting such a course were it not for an additional stipulation by the Quebec Education Ministry that in teaching the ERC course, “it is important that teachers maintain a critical distance regarding their own world-views especially with respect to their convictions, values and beliefs.” In addition, the Ministry has directed that teachers of the ERC course must “show professional judgment imbued with objectivity and impartiality in order to foster students’ reflection on ethical questions or understanding of the phenomenon of religion. Thus, to ensure against influencing students in developing their point of view, teachers abstain from sharing theirs.”
Montreal’s Loyola High School is a Catholic school in the Jesuit tradition that dates from 1896. Among the many distinguished graduates of this private school are former federal finance minister Jim Flaherty, former Governor-General Georges Vanier and the latter’s internationally renowned son, Jean Vanier, who is the founding director of the L’Arche communities for severely handicapped people and their dedicated care givers.
Loyola High School has long presented courses similar to the ERC that provide objective information on ethics and comparative religion, but the Loyola courses teach much more than mere tolerance and respect for others. In a letter to the former Liberal education minister of Quebec, Michelle Courchesne, the principal and president of Loyola High School, respectively Paul Donovan and Father Rob Brennan, S.J., explained: “Our students learn that each human being, regardless of race or religion, is created in God’s image and is therefore imbued with dignity and a value requiring not only respect for but love of all.”
On this basis, Donovan and Brennan asked the minister for a departure from the requirements of the ERC that would allow Loyola teachers in this as in all other courses to continue to affirm the traditional teaching of the Catholic Church. Courchesne flatly refused to grant such a departure.
Loyola High School appealed to the Quebec Superior Court and won. In a ruling on June 18, 2010, Justice Gérard Dugré directed the Quebec education minister to grant the departure requested by Loyola. In his reasons for judgment, Dugré did not mince words. He said: “the obligation imposed on Loyola to teach the ERC course in a secular manner is totalitarian in nature and essentially tantamount to the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus.”
Courchesne appealed to the Quebec Court of Appeal, where she won. In an unanimous ruling on May 7, 2012, a three-judge panel of the Appeal Court held that if the imposition of the ERC course on Loyola infringed upon the freedom of religion as guaranteed in both the Quebec and Canadian charters of human rights and freedoms, the encroachment was only “negligible, because it is a matter of only one course among several. Besides, the teacher is not required to refute the precepts of the Catholic religion, but only to abstain from expressing his opinion and convictions.”
Upon further appeal, the issue is now before the Supreme Court of Canada. It is a measure of the vital importance of this case that no fewer than 11 organizations ranging from the Christian Legal Fellowship and the Evangelical Fellowship of Canada to the Canadian Civil Liberties Association are intervening on behalf of Loyal High School. The Christian intervenors are all seriously alarmed that other provinces could emulate the Quebec government in suppressing the inalienable right of parents “to give their children a religious and moral education in keeping with their convictions” — a right specifically affirmed in section 41 of the Quebec Charter.
In no way do the interveners on behalf of Loyola High School insist that freedom of religion is absolute. They would all agree, for example, that a provincial education ministry would have a moral and legal obligation to stifle the preaching of hatred in any school, public or private.
The unprecedented Quebec directive to Loyola High School is entirely different. It compels the Catholic teachers in a private Catholic school to teach a course on ethics and religious culture in a strictly secular way.
Douglas Farrow, Kennedy Smith Chair in Catholic Studies at McGill University, testified in court on behalf of Loyola High School. He is outraged by the decision of the Quebec Court of Appeal. Referring to the totalitarian imposition of secular teaching on Loyola’s Catholic teachers, he writes : “I cannot think of a better way than this to neuter the Charter provision for freedom of religion — and not just for Catholics. Is that what we now mean to do? Is it really what our higher courts mean to do?”
Perhaps so. In the des Chênes ruling in 2012, the Supreme Court of Canada upheld the refusal of the Quebec education ministry to allow Catholic parents to withdraw their children from an ERC course in the public schools.
Regardless of that precedent or any other precedent, even the best legal experts can no longer have any certainty about the outcome of any case before the Supreme Court of Canada. The problem is, as demonstrated once again in the recent Bedford decision on prostitution, that the out-of-control judges on this Court have become a law unto themselves. They no longer have any compunction about arbitrarily overturning statutes, constitutional provisions or even the Court’s own precedents.
All Canadians, regardless of their views on the Loyola case, should be alarmed. Freedom under law can no longer exist for anyone in Canada so long as the historic rights and freedoms that are supposed to be guaranteed to in the Charter are arbitrarily overturned by our politicians and judges.
Rory Leishman is a columnist for The Interim and author of Against Judicial Activism: The Decline of Freedom and Democracy in Canada.