Canada’s Hobby Lobby Moment?

Supreme Court justicesIn a landmark decision on March 19, the Supreme Court of Canada decided Loyola High School v. Quebec.  At issue in the case was whether Loyola High School, a private Catholic school, should be required to teach Quebec’s “Ethics and Religious Culture” curriculum in a “neutral” manner.  Loyola sought an exemption from the neutrality requirement when teaching the Catholic faith and the ethics portion of the course.  Although the Supreme Court divided 4-3 with respect to the rationale, it unanimously held that Loyola should be granted an exemption.

As Barry Bussey explains below, this case is significant because the Court came very near to granting corporations religious freedom rights (read Bussey’s full article here).  The extent to which corporations enjoy religious freedom protections was, of course, a controversial issue decided last year by the American Supreme Court in Hobby Lobby v. Burwell.  In that case, the American Court held that RFRA grants religious exercise rights to certain for-profit corporations.  It seems that the Canadian Supreme Court may be following the American lead, albeit incrementally. Here is Bussey (footnotes omitted):

While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”

Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”:

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.

MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.

Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation. Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual. In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.

McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.

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