What follows is a beautifully written and insightful reflection on the Loyola hearing by vice-president of Cardus, Ray Pennings. The hearing was conducted in the Supreme Court of Canada on Monday morning, March 24, 2014. This reflection was originally published as a Cardus Daily blog. Reprinted here with permission.
Cardus has covered the issues involved in Loyola et al vs. the Attorney General of Quebec on many occasions. Always our position is that the organizations of civil society, including those that are religiously motivated, must be free to participate without hesitancy in our public space. This is at the heart of our understanding of freedom and democracy.
I had the privilege of a front row seat at Monday’s hearing. As befitting a Supreme Court, it is an impressive experience. Twenty-nine robed lawyers fidgeted nervously at the tables reserved for counsel, representing Loyola as the appellant, the Attorney General as the respondent, and the eleven organizations who had been granted intervener status. Chief Justice McLachlin presided over the arguments: an hour for the appellants’ lawyer, followed by ten minutes for each of the seven interveners granted the right to make oral arguments. Finally, the respondent had an hour, the appellant five minutes to respond. Throw in one 15-minute break and it was all over by lunchtime.
The judges on the bench allow the lawyer a few minutes to get started and into their grooves before the interrupting questions begin. To the appellants and supporting interveners, the questions had a similar theme. If you are going to argue freedom of religion, what about the state’s right to promote diversity, tolerance, and respect? And when these two rights run into conflict, how do we define the balance?
For the respondent, the questions were also uncomfortable. Did the Minister seriously consider the different nature of a Catholic school in making her decision and was the logical implication that no religious school could ever teach a religiously-based equivalency of this curriculum? Is this indeed the minimal impairment of the freedom of religion rights of the appellants?
It would be chasing fool’s gold to try and discern from the judges’ questions what their ultimate decision will be. The debate now will take place behind closed doors as the seven justices consider the arguments heard, take a position, assign one of their own to write it up in careful legalese (knowing that every word will be parsed and shape literally hundreds of subsequent legal decisions), and finally—six to nine months from now—release it for the rest of the world to evaluate.
But regardless of the verdict, I’m grateful for three things: