The Court Claims to Extend its Jurisdiction to Church Matters 52.0

Hall (Litigation Guardian of) v. Powers

Ontario Superior Court of Justice, [2002] O.J. No. 1803
Date of Decision: May 10, 2002
Date of Lex View Comment: March 27, 2003

In This Issue:

1. Key Terms
2. Significance of the Decision
3. Summary of Facts
4. Decision
5. The Court’s Reasons
6. LexView Commentary 
     

1. Key Terms
Ss. 1, 2(a), and 15 of the Canadian Charter of Rights and Freedom ("Charter"); discrimination on the basis of sexual orientation; freedoms of conscience and religion; injunction; s. 93(1) of the Constitution Act, 1867 ("s. 93(1)"); denominational schools; distinction between persons and action / persons and conduct; conflicting rights claims; religion as a group right; appropriate role of the courts in relation to the protected rights of religious communities; genuine pluralism and diversity.

2. Significance of the Decision
This application for an injunction involved an allegation of discrimination in the context of a school protected under s. 93(1). It is suggested that in allowing the injunction, the court failed to properly appreciate the importance of the context, a constitutionally protected religious school, and consequently undermined genuine pluralism and diversity. As the case heads to trial, a central factor will be the question of whether it is appropriate for the courts, in the context at hand, to delve into the internal dogmatic requirements of religious bodies to "second guess" their determinations on matters of doctrine and morality.

3. Summary of Facts
The plaintiff, Mr. Marc Hall, at the time the application for an interlocutory injunction was heard, was a seventeen year-old in his final year of high school. Mr. Hall, educated in Catholic elementary, junior high and high school, had identified himself to his parents, friends and school colleagues as having a homosexual orientation. Mr. Hall sought permission to bring his boyfriend to the Catholic Secondary School prom.

In February of 2002, Principal Powers denied Mr. Hall permission to attend the prom with his boyfriend. The reason given for the refusal was that interaction at a prom between romantic partners is a form of sexual activity. Therefore, if permission were granted for Mr. Hall to attend with his boyfriend, the school would be seen as endorsing or condoning conduct with is contrary to Catholic teachings. Two weeks later the Durham Catholic School Board refused to reverse the Principal’s decision.

A motion was brought on Mr. Hall’s behalf by his litigation guardian, Toronto MPP George Smitherman, pursuant to s. 24(1) of the Charter, for an interlocutory injunction compelling the school to allow Mr. Hall to attend the prom with his boyfriend.

4. Decision
The application for an interlocutory injunction was granted: the Catholic high school and all persons having knowledge of the order were restrained from preventing Mr. Hall from attending the prom with his boyfriend.

5. The Court’s Reasons
In determining this application for an injunction, McKinnon J. had to examine the legal merits of the case. This was required as the test for granting an injunction demands an investigation of whether or not there exists a serious issue to be tried, whether or not absent an injunction there will be irreparable harm to the applicant, and whether the balance of convenience favours granting relief.

McKinnon J. held that there was a serious issue to be tried: the legal merit was such that it justified the granting of an injunction. He found that the Charter applied to the school’s decision, and that Mr. Hall’s rights under s. 15 of the Charter were breached in a manner not justifiable under s. 1 of the Charter. Central to McKinnon J.’s reasons was his view that the teachings of the Catholic Church were ambiguous as to how they applied to the factual scenario at hand. Further, McKinnon J. held that allowing Mr. Hall to attend the prom with his boyfriend did not prejudicially affect the denominational school rights protected under s. 93(1), as the right in question, construed as the "regulation of students in their extra-curricular activities", was not in existence at Confederation, and because "it could not be said that the conduct in question… went to the essential denominational nature of the school." McKinnon J. did not address the "multiplicity of reciprocal s. 2 [Charter] rights" asserted by both the plaintiff and the defendants: in McKinnon J.’s view they were not determinative of the motion and were therefore left for the trial court.

With regard to the latter two prongs of the injunction test, McKinnon J. held that the exclusion from the high school prom was a serious and irreparable injury to Mr. Hall and that the balance of convenience clearly favoured Mr. Hall.

6. Lex View Commentary
Mr. Hall is a Catholic who disagrees with an important aspect of his Church’s doctrine considering homosexual conduct and whether this teaching ought to apply to his attendance at the school prom with a romantic same-sex partner. He brought this argument with Roman Catholic teaching to court. The court sided with him. In so doing, however, the court failed to adequately stress the importance of the context of a constitutionally-protected religious school. It is often said that "hard cases make bad law". This application for an injunction, heard under time-pressure as it was just days before the prom was held, is one such instance.

This comment will focus on four matters: the importance of s. 93(1) as providing the context within which the allegation of discrimination must be examined, the importance of religion as a group right, how courts ought to approach matters of religious doctrinal authority, and the need for a reinvigorated grasp of meaningful diversity.

The first question is whether s. 15 of the Charter can be employed in the context of a decision made to disallow Mr. Hall from bringing a same-sex date to the school prom, where the school is subject to the express guarantee of denominational school protection in s. 93(1). The denominational school rights under s. 93(1) basically provide that the Provinces subject to the subsection, now being Ontario, Saskatchewan and Alberta, have the power to make laws relating to education, subject to the proviso that they may not prejudicially affect any right or privilege with respect to denominational schools that existed "at the Union". In the context of this case, it protects the religious education of the Catholic minority in Ontario. Section 29 of the Charter specifically recognises this group right, as it states that nothing in the Charter abrogates or derogates from any rights or privileges guaranteed by the Constitution regarding denominational or separate schools.

The defendants submitted that Reference Re An Act to Amend the Education Act (1987), 40 D.L.R. (4th) 18 ["the Bill 30 Reference"], in which Ontario’s decision to fund Catholic schools through Grade 12 was constitutionally tested before the Supreme Court of Canada, makes it clear that s. 93(1) insulates denominational schools from the Charter, insofar as it pertains to their denominational character, i.e. matters which relate to the essential Catholic nature of the school. McKinnon J., however, seems to have misconstrued the defendants as submitting that denominational schools had "unfettered authority to do what they like on any matter" because they have constitutionally guaranteed control of the "management" of the school. This is clearly not so: only the content of the denominational right is fully insulated from the application of the Charter.

Did the principal’s decision to refuse permission to a homosexually-inclined student to bring a same-sex date to the school prom properly fall under the scope of s. 93(1)? Despite the decision in the Bill 30 Reference, McKinnon J. found that since the current Education Act in Ontario contemplates the "regulation of students in their extra-curricular activities" while the statute in effect in 1867, the Scott Act, apparently did not, the decision was not sheltered from Charter review by s. 93(1). With due respect, this is a narrow interpretation of the protection that s. 93(1) gives to denominational schools.

In Ontario English Catholic Teachers’ Association v. Ontario (Attorney General), [2001] 1 S.C.R. 470, Iacobucci J., for the Court, reiterated that the "animating principles" of s. 93(1) "…were, and are, religious freedom and equitable treatment." S. 93(1) protects rights or privileges affecting a denominational school, enjoyed by a law, in effect at the time of Confederation, by a particular class of persons, which are prejudicially affected. In Re Education Act (Ontario) and Minority Language Education Rights (1984), 47 D.L.R. (4th) 491 at 545 (Court of Appeal), it was stated that:

These rights and privileges include the large measure of autonomy in the control and management of their schools which Roman Catholics enjoyed at Confederation. But they involve more than the administrative structure, which, in itself, is intended only to be the means of preserving and fostering the religious and other values of denominational education.

Dubbed the "aspects" approach, the method of evaluating the coverage of s. 93(1) requires the court to determine whether there has been a prejudicial impact upon a denominational right or privilege or upon a non-denominational component necessary to deliver the denominational elements of education. The "aspects" approach is purposive, it is an inquiry regarding the broader purposes and intention of the legislation in force in 1867. Therefore, it demands more than simply asking whether the Scott Act addressed extra-curricular activities and dances. For example, judicial interpretation of s. 93(1) has permitted Catholic schools to refuse to employ as a teacher a civilly-remarried divorcée or to terminate the employment of a woman who mothered a second child outside of marriage, matters which would seem to fall outside of McKinnon J.’s strict delineation approach to the scope of s. 93(1). Why, then, has such activity been protected? The Supreme Court stated in Caldwell v. Stuart (1984), 15 D.L.R. (4th) 1 at 13 and 18:

In addition to the ordinary academic programme, a religious element which determines the true nature and character of the institution is present in the Catholic school. To carry out the purposes of the school, full effect must be given to this aspect of its nature and teachers are required to observe and comply with the religious standards and to be examples in the manner of their behaviour in the school so that students see in practice the application of the principles of the Church on a daily basis and thereby receive what is called a Catholic education…

…the Catholic school differed from the public school. This difference does not consist in the mere addition of religious training to the academic curriculum. The religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programmes… [Underlining added.]

While that case addressed a teacher’s conduct, the broader point is that Catholic education is pervasive. McKinnon J. claimed that "…the role of a school is to enlighten and guide students – not to control their private thoughts or behaviour" and claimed that the prom is "is not part of the religious education component of the Board’s activity" and "…is not educational in nature". While the prom is clearly not a spelling lesson, Catholic education is very much about forming students by shaping a coherent view of human life consistent with the teachings of the Catholic Church, specifically with a view to influencing private thought and private and public behaviour. Catholic education, like most religious education, is about inculcating the faith. This requires a congruency between teaching and conduct, and examples that demonstrate the institution’s faith commitment. The approach to s. 93 ought not, therefore, as McKinnon J. suggested, be to
"…look at the rights as they existed in 1867 but then to apply 2002 common sense". Especially so where the appeal to "common sense" is simply a means for reading out the specifically religiously-based point of s. 93(1). The proper approach is purposive, to look to the case law governing s. 93(1) and to the context of denominational education rights. This does not expand the purpose of s. 93(1), but safeguards its core.

Freedom of religion requires that a degree of deference be afforded to the authority structure within the religion being challenged. McKinnon J. overstepped his proper sphere by questioning, against the authoritative statement of the responsible Bishop, "…the correctness of the statement in the defendant’s materials that Catholic teachings and Board policy in fact proscribe "homosexual behaviour" and a "homosexual lifestyle" so as to justify prohibiting Mr. Hall from attending his prom with [his boyfriend]".

McKinnon J. claimed, essentially, that the issue at hand was merely a school dance. It was not, he said, about sex, not about courtship and nor was it about marriage. It was about dancing at the prom. He claimed:

Nowhere in the materials do I find documentary evidence that establishes that same-sex dancing is sinful or sexual under Catholic dogma. Rather, the Catechism calls for non-discrimination and mentions nothing about same-sex dancing. In my view, a fully informed ordinary citizen would consider public dancing, fully clothed under the supervision of teachers, to be chaste behaviour… I am not persuaded by the courtship distinction… " [Emphasis added.]

The "fully informed ordinary citizen", however, is not centrally relevant to determining what activity is properly construed as protected under s. 93(1) and s. 29 of the Charter.

Many of the Church’s teachings are the subject of lively debate, both inside and beyond the Church community. While this is so, there is only one authentically Roman Catholic position. The Catholic position on homosexuality is complex, as it is rooted in an understanding of the human person, in an understanding of human sexuality (something which is ordered towards the conjugal love of man and woman), in the distinction between persons and conduct (on which, see Lex Views Nos. 38 & 51), and in an understanding of marriage. The doctrinal nature of these matters is, one would have thought, well beyond the expertise of civil judges.

McKinnon J. examined the Church’s Catechism, an authoritative manual of the Church’s teachings, which declares, in McKinnon J.’s words, "…that homosexuality is contrary to natural law and can under no circumstances be approved, but goes on to direct both that homosexuals should be accepted with respect, compassion, and sensitivity and also that every sign of unjust discrimination should be avoided". McKinnon J. also had expert evidence relating to how the Church’s teachings apply in the situation at hand, as well as the Bishop’s affidavit. McKinnon J., however, concluded: "[t]here is, on the material before me, a substantial diversity of opinion within the Catholic community regarding the appropriate pastoral care and the practical application of [the] Church's teachings on homosexuality".

This approach misunderstands the nature of the Catholic tradition and the essential and fundamental need for a religion to be able to insist on the authority of its own interpretations of its doctrine. Bishop Meagher provided the clear, authentic and authoritative Roman Catholic position in his evidence. McKinnon J., while he purported to recognize that the Catholic religion recognises that authority for the Church’s teachings rests in the Bishop, nonetheless concluded that "the evidence before me indicates it is not the only Catholic position, nor is there any evidence that it is the majority position". McKinnon J. set himself up, in effect, as Bishop.

The fact is, however, that the Catholic Church is not a democracy and its dogmatic determinations are not based upon popular support, much less unanimity. Whether or not McKinnon J. is "persuaded by the courtship distinction" is, to some extent, therefore, wholly beyond the point: McKinnon J. must ask whether or not the "assertion" being made is authentically denominational in character or not, but beyond that he is not to wade into the Catholic community’s belief structure, which is constitutionally protected by s. 93(1) from exactly such intrusion. In short, McKinnon J. does not seem to appreciate the appropriate relation between Church and state.

In the past, the ability of religions, as collectives or groups, to make determinations regarding their internal affairs, has been respected and protected by the Supreme Court.* An example of an appropriate recognition of a religious group right is Hofer v. Interlake Colony of Hutterian Bretheren, [1970] S.C.R. 958. This case involved a claim by dissident members of a Hutterite Colony. These dissident members had signed the Colony’s Articles of Association which governed the communal sharing of property and the procedure for the expulsion of members. These dissidents then abandoned the teachings of their community and converted to the Radio Church of God. They were expelled. They then sought a court declaration that they were still members of the Hutterite Colony and that the Colony be liquidated so that they might obtain an equal share of the communal property. The essence of Ritchie J.’s majority reasons was that:

There is no doubt that the Hutterian way of life is not that of the vast majority of Canadians, but it makes manifest a form of religious philosophy to which any Canadian can subscribe …. I can see nothing contrary to public policy in the continued existence of these communities living as they do in accordance with their own rules and beliefs…

Here the Court rightly recognised that a religious group must be afforded the space to conduct its affairs according to its internal rules. Indeed, it is difficult to imagine what kind of notion of "pluralism" could function in Canadian society if everyone must subscribe to the same general rules. Part of Canada’s much vaunted self-understanding of "tolerance" and "pluralism" must be precisely a rigorous accommodation of the different norms of voluntary associations and religions, but particularly so in the context of s. 93(1) and s. 29 of the Charter, which specifically exist to protect this exact right from majoritarian disagreement.

Related to understanding religion as a group right is the need to inquire regarding Mr. Hall’s ability to choose to leave his affiliation, educationally or otherwise, with the Catholic faith. This question has been described in academic literature as the "right of exit" question. McKinnon J. claimed that "[i]t is not an answer to him, on these facts, to suggest that he can exercise his freedom of disassociation and leave his school". Why not? The School has quite clear rules regarding a number of things, rules Mr. Hall was seemingly well aware of. It would seem that the alternative that McKinnon J. preferred was to employ the power of the state to demand that the Catholic school community publicly approve of activity which is contrary to its teachings

What is disturbing about when courts whittle away at the group right aspect of religious freedom is that there is no consideration of the fact that it is healthy for Canadian society, for the common good, that there are communities which do hold "truths", even if these claims are sometimes contrary to what might happen to be fashionable. As has been recognised by the courts (see Lex View No. 40) the notions of human dignity and the inviolable rights of human persons, central principles of our Charter, were developed within religious morality and then adopted by the wider culture. Further, the course of the development of human history ought to lend credence to the view that there are benefits which accrue when the marketplace of ideas is left open to competition. It must also be noted that the past century has taught us that states have been known to make mistakes, and that a healthy civil society is a good check on government power. If the alternative to such a balance is that of secularistic fundamentalism, combined with a generally unstated belief that the point of liberalism is "convergence", in the sense that everyone will be coerced into agreement, then we have more than the "spectre" of "raw judicial power", we will have its actuality.

This case reflects the judicial approach to organised religion which was discussed in Lex View No. 51, a greater willingness to examine faith traditions, religious and non-, and determine what is "core" versus what must be regulated by the state. While judicial intervention is perhaps unavoidable in extreme cases, cases where health, safety, personal liberty or autonomy are substantially comprised, it ought to be avoided where the issue is not such that it significantly jeopardizes harmonious community living. In questionable cases, however, care must be taken not to use an argument related to "public order" in ways that assume a utopian conception of society or that unjustly coerce legitimate alternative viewpoints on contested matters. Some disharmony might be a necessary aspect of human co-existence and courts ought to be vigilant to avoid spurious justifications which tempt the court to go beyond what is mandated by the rule of law. On these facts, there is no such threat to harmonious community life. McKinnon J. found that the Church’s position on homosexuality in this context is discriminatory, but in doing so he failed to engage the central distinction in the Church’s position between persons and conduct. Is Mr. Hall’s fundamental dignity really undermined by the Church’s position? Or is the dignity of religious adherents of the Roman Catholic faith and its institutions more seriously threatened by the courts’ interference in internal matters as in this case? The religion is saying nothing about Mr. Hall’s worth: it is disagreeing with his behaviour based upon its own rigourous conceptions (whether or not one agrees with them) of the nature of the human person and the relation between sexual morality and human flourishing.

This case requires us to note the danger that exists when the Charter is reduced to allusions to "Charter values" and "diversity-speak" and "dignity-speak" that is applied disproportionally for the benefit of some citizens over others. It is good to speak of "one of the distinguishing strengths of Canada as a nation [is] that we value tolerance and respect for others", but why ought this tolerance and respect weigh more heavily for the plaintiff’s s. 15 rights than the defendants’ freedom of religion and conscience or similar s. 15 rights, particularly where, as here, Mr. Hall’s affiliation with the Catholic school is voluntary? Justice McKinnon’s approach, with respect, eradicates both "diversity" and "tolerance" while claiming to uphold them.

The evidence before the court showed that Toronto has, in fact, special proms for gay students should they wish to attend them. The character which makes Catholic schools different is their commitment to the teachings of the Roman Catholic Church. Their existence enriches the diversity of options which is available to Canadians. If these schools are forced to bow to a particular conception of one sort of sexuality, then the result is not diversity but homogeneity – or as it has been rightly termed "Charter monism" - as the same offering is available at all schools across the country. The Catholic school community is not insisting that all schools disallow homosexually- inclined students from bringing same-sex dates to school dances, they are only insisting on this for their school event.

Some say something to the effect that "because the school gets public money, it cannot refuse Mr. Hall’s request". McKinnon J. appeals tangentially to such reasoning at para. 43 of his reasons, where he also makes an inappropriate analogy to the U.S. case of Bob Jones University v. United States, 461 U.S. 574. Neither argument can be persuasive in Canada, because s. 93(1) and the case law interpreting it guarantee, as part of a past "solemn pact resulting from the bargaining which made confederation possible" [Bill 30 Reference at 1173], the availability of publicly funded denominational schools. Perhaps Canada would in fact be better off if other religious schools could benefit from public funding, but that is not the question at hand, and a tangential appeal to its merits certainly ought not be an interpretative principle employed to whittle away what is clearly legally protected. When such flawed interpretation does occur, as this decision shows, the tapestry of genuine diversity and meaningful pluralism of which Canada has been rightly proud is under threat.

This case involved a rights conflict between Mr. Hall’s right to be free from discrimination on the basis of sexual orientation under s. 15 of the Charter and the denominational school rights granted to the Durham Catholic School Board and Mr. Powers under s. 93(1), clearly protected within s. 29 of the Charter, as well as the right to freedom of conscience and religion under s. 2(a) of the Charter and the Catholic community’s own equality rights under Section 15. In allowing Mr. Hall’s claim to be free from discrimination, McKinnon J. interpreted the fundamental group right found in s. 93(1), as well as the freedom of religion guaranteed by s. 2(a) of the Charter, in such a way that they were clearly trumped by Mr. Hall’s individual equality claim under s. 15 of the Charter, at least insofar as the context of this injunction. This is plain and clear, as McKinnon J. stated: "[b]oth parties in this case assert a multiplicity of reciprocal s. 2 rights. Having come to the conclusion that I have on the s. 15 issue, it is unnecessary for me to explore those matters at this time." Unfortunately, this approach seems to suggest that each rights claim, in isolation, demands ubi jus ibi remedium (where there is law there is a remedy). But, what if the remedy relating to one rights claim infringes another’s rights? Didn’t Trinity Western University v. B.C. College of Teachers, [2001] 1 S.C.R. 772 demand that in cases where such rights conflict, a court must ask the preliminary question of whether "any potential conflict should be resolved through the proper delineation of the rights and values involved"? The Court did nothing to deal with the issue of a "collision of rights" in the context of civil society.

This case will be proceeding to trial in the spring of 2003. It is hoped that the decision at trial will apply an approach that focuses upon all of the issues in context and avoids the lamentable approach employed at the injunction stage.

Lex View is researched and written by:

T. Peter Pound, B.A (Hons.), B.A. in Juris. (Oxon.)(Hons.), LL.B, B.C.L., of the Ontario Bar.
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B., of the British Columbia Bar.

* In researching this Lex View, "Whither Freedom of Religion?", Report No. 16 of the Institute for the Study of Marriage, Law and Culture, authored by Dr. Daniel Cere, was particularly insightful regarding the importance of religion as a group right.

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Copyright © 2003 T. Peter Pound and Iain Benson

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