On March 19, 2015, the Supreme Court of Canada rendered its verdict in the case of Loyola High School v. Quebec (Attorney General), 2015 SCC 12. Loyola High School (“Loyola”) is a private, English-speaking, Catholic high school for boys in Québec. In 2008, Québec’s Minister of Education, Recreation and Sports required that all schools in the province teach a “Program on Ethics and Religious Culture” whose objectives were given as “pursuit of the common good” and “the recognition of others” through the teaching of the beliefs and ethics of multiple world religions. The teachers and the program were required to be objective and impartial, and not to advance any particular belief system; the program was allowed because it was designed merely to foster awareness of differences.
However, section 22 of Québec’s Regulation respecting the application of the Act respecting private education allowed for the Minister to grant an exemption from the program for private schools if a proposed alternative course was deemed “equivalent”. Loyola requested such an exemption, wishing to instead offer a course that would be taught from the “perspective of Catholic beliefs and ethics”. The Minister denied Loyola the exemption. Loyola brought an application for judicial review of the Minister’s decision, and the Superior Court of Québec found that the denial “infringed Loyola’s right to religious freedom” and ordered the exemption be granted. The Minister appealed, and the Québec Court of Appeal overturned the Superior Court’s decision and held that the Minister’s decision was in fact reasonable.
On appeal to the Supreme Court, the Court held that the Minister’s decision was unreasonable because “preventing a school like Loyola from teaching and discussing Catholicism in any part of the program from its own perspective does little to further (the program’s) objectives” and would at the same time seriously interfere “with the values underlying religious freedom”. The Court referred the case back to the Minister for reconsideration.
Application to the Charitable Sector
The advancement of religion has been historically recognized as being beneficial to the public, and religious organizations are constantly applying for charitable status with the Canada Revenue Agency. According to CRA policy, organizations may be registered as charities in Canada for the purpose of advancement of religion due to the fact that a presumption of a “benefit to the public” exists when an organization has as its purpose “the advancement of religion”. However, given that we live in a society that tends to favour religious neutrality, arguments are being put forward that religious organizations should no longer be automatically afforded charitable status by the government. Instead, some argue that all religious organizations should have to provide a “proof of benefit” before they are registered as a charity. According to CRA, in order for an organization to provide a “proof of benefit”, it would be required to prove that:
- the benefit it is providing is tangible. In other words, if it is intangible, it must be demonstrated that the benefit is regarded as valuable by “the common understanding of enlightened opinion”;
- the benefit must generally be direct (although in some circumstances, examiners could consider an indirect benefit); and
- when the benefit is proven, it must be weighed against any harm that may arise from the proposed activity and a net benefit must result.
Although this might be simple for larger denominations (i.e. Catholics, Anglicans or Protestants), smaller religious denominations may find it challenging to meet the public benefit test. What then becomes of these organizations? Or what about organizations that are secular in nature? Would they have an argument under section 2(a) of the Canadian Charter of Rights and Freedoms? Some believe that if we were to move away from an automatic approval of religious organizations, we could end up in a situation where litigation through the court could occur, and that is where Loyola may come in to play.
While the majority of the Court avoided the issue of whether or not a religious organization required protection under the religious freedom guarantee contained in the Charter, the majority did reflect that religious freedom must “be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights” and it did not rule out that possibility. Also, the minority opinion of the Court in Loyola would have allowed religious organizations to be protected by the Charter, so the possibility of a constitutional challenge being brought forward is perhaps more likely than not. It will be interesting to see that if we continue as a society to favour religious neutrality, a case from the non-profit sector will present itself in front of the courts.
 Loyola High School v. Quebec (Attorney General)  SCC 12 at para 29.
 Ibid at para 80.
 Canada Revenue Agency, CPS-024 “Guidelines for Registering a Charity: Meeting the Public Benefit Test”, online at http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cps/cps-024-eng.html#N10304.
 Supra n 1 at para 47.