Reasonableness, Proportionality and Religious Freedom: Loyola High School v. Quebec (Attorney General), 2015 SCC 12

Where an administrative decision-maker has violated a fundamental right, how should courts review the decision? Should they apply the standards of constitutional law (a proportionality test, for example)? Or should they apply the standard grounds of administrative law (such as reasonableness)? The Supreme Court of Canada has written more than most on this question and today it spilled some more ink in Loyola High School v. Quebec (Attorney General), 2015 SCC 12. There will be more ink to come.

Quebec has a secular religious education course that is mandatory across the province, in public and private schools alike. An exemption is available “provided the institution dispenses programs of studies which the Minister…judges equivalent”. Loyola, a Jesuit high school in Montreal, applied for an exemption. It wishes to teach a religious education from (primarily) a Catholic perspective. The Minister refused the application, essentially because Loyola wants to teach comparative religion and ethics from a Catholic point of view. He wrote, for example: “According to the summary of the program proposed by Loyola High School and transmitted to the department for evaluation, the program does not meet the requirements for the Ethics and Religious Culture program in terms of religious culture, as religions are studied in connection with the Catholic religion”.

The Supreme Court of Canada split on how to review this decision. One might have thought that the analytical framework was settled by Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, a unanimous decision written by Abella J. in which a deferential approach was preferred to review of discretionary decisions affecting Charter rights. For a majority of four judges today, Abella J. applied the Doré framework to the minister’s refusal to grant the exemption. Yet, without mentioning Doré, the three judges in the minority — including two who signed onto Doré! —  applied a proportionality test (a position I favour).

As for Abella J.’s application of the reasonableness standard, it is difficult to discern how it is more deferential than, or analytically distinct from, proportionality. She began by saying: “the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate” (at para. 37). But she quickly added: “In the context of decisions that implicate the Charter, to be defensible, a decision must accord with the fundamental values protected by the Charter” (ibid). Indeed, “in contexts where Charter rights are engaged, reasonableness requires proportionality” (at para. 38, emphasis added).

In Doré, Abella J. had referred to Charter values rather than Charter rights, holding that administrative decision-makers need only strike a proportionate balance between Charter values and statutory objectives, a flexible, non-formalistic analysis. But that aspect of Doré was heavily qualified today. Indeed, Abella J. required a (familiar) two-step analysis. First, the reviewing court must determine “whether the decision engages the Charter by limiting its protections”; this is a “preliminary issue” (at para. 39). Second, the reviewing court must assess whether a “proportionate balancing” has been achieved (ibid). This requires an analysis that “finds analytical harmony with the final stages” of the proportionality test: “minimal impairment and balancing” (at para. 40, see also para. 58). But if that is the case, why not simply call a proportionality test a proportionality test?

Whither Charter values? Abella J. described them as “values that underpin each right and give it meaning”. Concretely, they “help determine the extent of any given infringement in the particular administrative context and, correlatively, when limitations on that right are proportionate in light of the applicable statutory objectives” (at para. 36). She added, quoting Lorne Sossin and Mark Friedman, that Charter values must understood in context (at para. 42). Unfortunately, it is difficult to discern what Charter values add to the analysis: if the first question is whether the Charter is engaged and the second question is whether the infringement is minimally impairing and strikes a fair balance, Charter values have no independent role. Indeed, to the extent Abella J. suggests that Charter values are in the “penumbra” of Charter rights, she is open to the objection that she is extending the Charter beyond its text.

This is at least a little bit ironic, given that the reference to Charter values allowed Abella J. to duck the question whether Loyola itself can enjoy the right to freedom of religion (at para. 33), although her ultimate conclusion was that the effect on the ‘Loyola community’ “necessarily engage[d] religious freedom” (at para. 58). By contrast, the minority was quite clear that Loyola “may rely on the guarantee of freedom of religion” (at para. 91).

Analytically speaking, the conclusions of the majority and minority are almost identical (though they disagree on an important point about the teaching of ethical issues, explained by Abella J. at para. 71 et seq and on remedy, see paras. 164-165). If you can put a hair between paras. 68-69 and 150-151, please let me know in the comments. For both majority and minority, the Minister’s inflexible position that religion had to be taught from a neutral perspective violated religious freedom and ran counter to the purpose of the exemption provision. A unanimous win for Loyola, but little unanimity on the relationship between constitutional and administrative law.

See also these excellent contributions from Dwight Newman, Shauna Van Praagh and Léonid Sirota.

This content has been updated on March 19, 2015 at 21:16.