This week we reproduce another aspect of Judge Papageorgiou’s decision that warrants reiteration and even emphasis.
In her 46-page judgement Judge Papageorgiou concluded that “there is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter.” (That is: the legal test that must be met to allow the courts to begin the process of re-assessing the full applicability of the 1996 Adler case to the societal and legal situation today).
It was the Supreme Court’s decision in Adler, readers will recall, that enabled Ontario to fund the religious education of the children of one religion to the exclusion of children of other religions. The court did not prohibit Ontario from funding the religious educations of children of other religions. Nevertheless, ever since then, Ontario has adamantly refused to provide any funding to independent schools or to the schools of other religions. Yet, all the western provinces and Quebec, do provide some funding to their independent schools.
In arriving at her decision to allow GAJE the opportunity to begin the “Adler discussion” in court, Judge Papageorgiou created a reasoned path of ten discrete stepping stones of evidence and logic. The eighth stepping stone dealt with “the arguments presented by the Grassroots Applicants regarding social, political and legal developments in support of their position that they meet the test in Bedford and Carter.” This part of the judge’s reasoning comprised 20 of the 46 pages and was itself divided into eight categories of social, political and legal developments. The second category of developments was: “The principle of state neutrality”.
It is the judge’s discussion of this development that we draw to readers’ attention this week.
The following is excerpted from Judge Papageorgiou’s decision.
•••
“[126] Since Adler, the breadth of freedom of religion has arguably been expanded by the Supreme Court’s adoption of the principle of “state neutrality.”
[127] In S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, the Supreme Court grappled with the fact that freedom of conscience and religion involves the rights of those who have religious beliefs as well as those who do not. It referenced the work of the author R. Moon and discussed the challenges faced by the state in trying to achieve religious neutrality: the more religion is excluded from public life, the more it appears that the secular is “less neutral and more partisan”: at para. 30 [Emphasis added]. This supports the reason why both McLachlin and L’Heureux-Dubé JJ. found a breach of s. 15 in Adler in their dissents: at paras. 208-209, per McLachlin J.; at paras. 67-68, per L’Heureux-Dubé J.
[128] The Court proceeded to define the concept of state neutrality as a state posture that “neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected”: at para. 32.
[129] In Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, the Supreme Court elaborated on these principles. In that case, an individual complained about a mayor’s recitation of a prayer prior to public meetings at a municipal council. He argued that this violated his freedom of conscience and religion pursuant to the Quebec Charter of Human Rights
and Freedoms, C.Q.L.R., c. C-12 (the “Quebec Charter”). He asked for an Order that the prayer stop and all religious symbols be removed from council chambers. The Human Rights Tribunal granted the application, finding that the prayer was religious and the mayor showed a preference for one religion over another in violation of the principle of state neutrality. The Quebec Court of Appeal allowed an appeal, and a further appeal was made to the Supreme Court.
[130] In its opening paragraph, the Supreme Court explained:
The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of Human Rights and Freedoms, CQLR, c. C-12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (‘Canadian Charter”). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.
[131] It subsequently held that “[s]ponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination” because it “imports a disparate impact that is destructive of the religious freedom of the collectivity”: Mouvement, at para. 64. It further pointed out that neither the Quebec Charter nor the Charter expressly imposed a duty of religious neutrality on the state but that “[t]his duty results from an evolving interpretation of freedom of conscience and religion”: at para. 71.
[132] The Court further provided an analysis of the importance of religious beliefs in the context of the duty of state neutrality, which is consistent with L’Heureux-Dubé J.’s dissent in Adler. It adopted the following view, at para. 73: In “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C.L. Rev. 497, at p. 507, Professor R. Moon points out that a religious belief is more than an opinion. It is the lens through which people perceive and explain the world in which they live. It defines the moral framework that guides their conduct. Religion is an integral part of each person’s identity. When the state adheres to a belief, it is not merely expressing an opinion on the subject. It is creating a hierarchy of beliefs and casting doubt on the value of those it does not share. It is also ranking the individuals who hold such beliefs.
[133] And, at paras. 75-76, it writes, “[t]he state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others” and “[i]t is prohibited from adhering to one religion to the exclusion of all others.”
[134] There has not yet been any consideration of how the duty of “state neutrality” interacts with the legislative and constitutional provisions in question. The Moving Parties concede that both religious neutrality and multiculturism play an important role in the interpretation of the Charter provisions in question. Their answer to this issue is essentially that the duty of state neutrality is not relevant since their actions are immune from Charter scrutiny. But the point is, the Adler Majority came to that conclusion without considering the duty of state neutrality, as it is now expressed in the above cases.
[135] The Moving Parties also argue that even if not expressly addressed in Adler, the concept of state neutrality was implicitly part of the jurisprudence at the time of Adler because s. 27 of the Charter mandates that Charter rights be interpreted in a manner which preserves and enhances Canada’s multicultural heritage.
[136] This may be an arguable position, but so too is the argument that the principles in S.L. v. Commission scolaire and Mouvement are new, and the principle of “state neutrality” broadens the scope of freedom of conscience and religion, from a guarantee that the state will not coerce or hinder any particular beliefs to a broader obligation to act in a manner that is respectful of people’s religious beliefs in all public spaces. There is a reasonable argument that the current funding scheme provides a benefit to those who have no religious beliefs which cannot be accessed by those with strong religious beliefs and that this violates the duty of neutrality.
[137] The Moving Parties also reference the Supreme Court’s comments at para. 71 of Mouvement, where it quotes LeBel J. in Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650 that “[o]ur Court has recognized this aspect of freedom of religion in its decisions, although it has in so doing not disregarded the various sources of our country’s historical heritage.”
[138] This is likely a reference to Reference Re Bill 30 and Adler, although this is not specifically set out. While it may be arguable that the Application herein, if successful, would result in the disregard of our country’s historical heritage, I suggest that this is not necessarily so. Even if Charter challenges of the nature sought here were permitted to proceed, anyone seeking to do so would still have to establish a Charter breach and any such breach would still be subject to s. 1. Furthermore, even if successful on all grounds, there is no guarantee that any funding would be permanent as there could be circumstances raised by Ontario in the future that are sufficient to allow it to stop such funding, pursuant to s. 1; these are hurdles which Roman Catholics would still never have to jump over as funding for Roman Catholic separate schools is constitutionally guaranteed. Thus, Canada’s heritage would not be disregarded even if the Grassroots Applicants’ case meets the threshold issue and even if they ultimately fully succeed in this Application.
[139] I add that following the statement in para. 71, the Supreme Court in Mouvement further stated that “[i]f the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality”: at para. 78.
[140] And it expressed its disagreement with the Quebec Court of Appeal on the following point, at para. 134: As understood by that court, neutrality would in the instant case require tolerance for the state’s profession of a clearly identified religious belief on the basis of tolerance for its history and culture. I do not believe that this is the sense of true state neutrality with respect to freedom of conscience and religion.
[141] Even though Ontario must fund Roman Catholic schools because of s. 93, the principle of state neutrality still exists; there is a reasonable argument, or at least a novel one, that in order to act in accordance with this principle in the circumstances, it must extend funding to other faith- based schools.”
•••
We have provided this extensive quotation from Judge Papageorgiou’s decision because, as she clearly pointed out, the doctrine of a “duty of state neutrality” did not exist in 1996, at the time the Supreme Court decided the Adler case. GAJE suggests that nearly 30 years after the Supreme Court decided Adler, the courts ought to consider whether this “new” important, legal doctrine should be applied to the facts that we have raised in our application. If they do, they might arrive at a different decision than they did in 1996.
Judge Papageorgiou agrees with GAJE’s suggestion decision.
•••
If you are upset that Ontario is trying to shut down GAJE’s case before we have had a hearing on the merits of the case, we urge you to let your Member of the Provincial Parliament know.
And if you wish to support GAJE’s lawsuit, please click here.
For further information, please contact Israel Mida at: imida1818@gmail.com
Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.
•••
Shabbat shalom and chag Succot samayach.
Grassroots for Affordable Jewish Education (GAJE)
September 29, 2023
Grassroots for Affordable Jewish Education 