The Supreme Court of Canada has upheld the Quebec Superior Court's decision that a state-organised, multi-faith, ethics and religious class did not infringe the right to freedom of conscience and religion. The Court held that determining whether a person's right to religion was infringed required a subjective understanding of the belief alleged to be infringed and objective determination of whether an infringement occurred.
Section 2(a) of the Canadian Charter of Rights and Freedoms and section 3 of the Quebec Charter of Human Rights and Freedoms protect the right to freedom of conscience and religion. Quebec's Ministry of Education implemented a compulsory ethics and religious culture (“ERC”) program in schools that began in the 2008-9 school year. The Court was asked to consider whether the ERC program infringed the right to freedom of conscience and religion.
The ERC program was described as a non-denominational ethics class that also studied the traditions and culture associated with various religions. The ERC program was part of the process of secularising Quebec's public education system which was, historically, subject to influence by religious groups. The appellants were the parents of two children. The appellants believed they were obliged, as Catholics, to pass on the teachings of Catholicism to their children. They contended that the ERC infringed their rights by hindering their ability to pass on Catholic teaching.
The appellants sought exemptions from the ERC program for their children under section 222 of the Education Act, claiming that participation in the ERC program may cause serious harm to the children. It was alleged that harm would arise because the ERC program was, amongst other things, upsetting and would teach the philosophy of 'relativism'. The School Board's council of commissioners rejected the application. The appellants then brought proceedings in the Quebec Superior Court seeking declarations that the ERC program infringed their rights. The appellants also sought judicial review of the School Board's decision on the basis that the board was acting at the behest of the Minister of Education. The application was unsuccessful. The appellants then appealed unsuccessfully to the Court of Appeal, and then to the Supreme Court of Canada.
The appeal was dismissed by the Court in a unanimous decision delivered by Deschamps J (McLachlin CJ Binnie, Abella Charron, Rothstein and Cromwell JJ concurring) and a separate concurring judgment provided by LeBel J (Fish J concurring).
Deschamps J held that establishing an infringement of the right to freedom of conscience and religion comprised two elements. First, the possession of a religious belief must be shown, and second, interference with that belief must be established. Deschamps J stated:
It follows that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice… Proving that infringement requires an objective analysis of the rules, events or acts that interfered with the exercise of the freedom. To decide otherwise would allow persons to conclude themselves that their rights had been infringed and thus to supplant the courts in this role.
Applying those principles, Deschamps J concluded that the ERC program did not infringe the appellants' rights. The ERC program gave effect to the Quebec Government's adoption of a neutral stance such that the ERC program was not itself an attempt to indoctrinate or infringe religious beliefs held by the appellants. Further, the Court considered that by exposing students to beliefs and realities that differed from their own, the ERC program was consistent with the multicultural and pluralist society existing in Canada generally and Quebec in particular. Given that exposure to multiculturalism and pluralism did not infringe those rights it did not follow that the ERC program, consistent with those principles, could infringe those rights either.
LeBel J concurred with Deschamps J but with less conviction. LeBel J indicated that the presentation of the matter in inferior courts was deficient. LeBel J considered that the appeal turned on whether the ERC program taught students about the diversity of society and encouraged openness to that diversity, or whether it was in effect an “education tool designed to get religion out of children's heads” through atheistic or agnostic teaching. LeBel J concluded by noting that future cases may result in different outcomes as the operation of the ERC program unfolded.
Relevance to the Victorian Charter
The Court's decision may have persuasive value in respect of application of section 14 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which protects substantially similar rights to those considered by the Court. However, whether a Victorian court would reach the same conclusion as the Canadian Supreme Court may depend on further consideration of section 38 of the Victorian Charter which makes it unlawful for a public authority to act in a manner incompatible with human rights and, by implication, section 7(2) where applicable.
The Court's reasoning regarding the nature of religious belief may also pose interpretive issues in Australia. The Court's view that religious belief can exist outside of canon or precept may need to be considered in the context of the High Court's decision of The Church of the New Faith v Commission of Pay-Roll Tax (Vic) (1983) 154 CLR 120 in which Mason ACJ and Brennan J held that religion comprised supernatural belief combined with acceptance of canons of conduct. Therefore, the necessary nexus between a belief and the canon of a religion to which it relates may differ in Victoria as compared to Canada in determining whether that belief is a religious belief.
The decision can be found online at http://canlii.ca/en/ca/scc/doc/2012/2012scc7/2012scc7.html.
Daniel Diaz is a lawyer at Allens Arthur Robinson.