Convivium was a project of Cardus 2011‑2022, and is preserved here for archival purposes.
The Conversation: Law, Loyola and the Common GoodThe Conversation: Law, Loyola and the Common Good

The Conversation: Law, Loyola and the Common Good

Earlier this year, the Supreme Court of Canada declared the government of Quebec had breached the religious freedom of Loyola High School, a private Jesuit institution in Montreal. Paul Donovan, who led the seven-year legal battle as Loyola's principal and who became its president in April, spoke with Convivium publisher Peter Stockland about the implications of the decision for Canada's faith in common life..

Paul Donovan
Peter Stockland
15 minute read

CONVIVIUM: I wanted to ask you a first question from your perspective, not as the former principal and now new president of Loyola High School, but as a citizen who's just gone through a very arduous, seven-year legal process. You took on the Quebec government in Superior Court, the Court of Appeal, and, finally, the Supreme Court of Canada. You used the range of Canada's legal system to fight for the right to teach Catholicism to Catholics from a Catholic perspective. So now, having gone through an arduous, seven-year legal process and, having won, from your perspective as a citizen — not as the former principal and now president of Loyola High School — how well do you think the legal system works for these kinds of issues? Is the system what you expected it to be? Is the system what it should be?

PAUL DONOVAN: Yes and no. I think the overall system works in theory, and I think Loyola is an example of that. But Loyola had the resources, or at least access to the resources, to enable it to do everything it needed to do. I don't think most citizens do. Depending on what the issue is, if there are Charter challenges that really affect fundamental rights and you're not an institution or a person with access to resources, I really don't know what would happen.

C: Your rights are trampled, but you can't afford to stop the trampling. It's the Charter of Rights and Freedoms, but defending your rights and freedoms isn't free?

PD: That, for me, would be a concern. I know there are funds available, but they don't always apply to the issues at hand. I would be very concerned if there were some fundamental violations that were going on and the violations were occurring where someone didn't have the means to defend their rights. We were fortunate to have Borden Ladner Gervais do most of the Loyola work pro bono. For the work that wasn't pro bono, again, Loyola had benefactors.

But if you're just John Smith… It takes a lot to go into this whole thing. And that, for me, is the biggest downfall. It can be prohibitive in terms of resources, and time and energy. That does stop frivolous challenges. That's a good thing. But I think it's tilted a little too far to the prohibitive side.

C: What would the ballpark cost be from the time Loyola filed its application against the government's refusal to grant an exemption to the Ethics and Religious Culture program until the resolution in the Supreme Court this year?

PD: You mean if the pro bono wasn't pro bono?

C: Yes. I'm not even talking about the amount of staff time put in by the school itself — just in terms of the outside resources that were involved? Are we talking in the order of $500,000?

PD: I would say if we'd had to pay the whole shot, it would have come to a little more than half a million dollars.

C: Half a million bucks to have your rights affirmed?

PD: It is prohibitive.

C: And, of course, your learned legal friends on the government side have a bottomless pit to draw from, so you really are up against it when you decide to get into one of these fights.

PD: Ironically, the bottomless pit on the other side is one we pay into as taxpayers.

C: We're filling the pit that's bottomless for them. Yet, when you look at it, this is precisely what the Charter was designed for. When government intrudes on the rights of people, not unlike Quebec's infamous Jehovah's Witnesses case or the Padlock Law, the courts are seen as the only bulwark against them. Would you frame Loyola in that way?

PD: I was actually thinking of the Jehovah's Witnesses example, which is ironic given it's a case that people love to cite when they talk about government not getting involved in religion. The irony is that it all has to do with what the concept of religion is. In this particular case, the people on the other side thought the government was actually being neutral [by imposing the Ethics and Religious Culture program]. Neutrality toward religion is also neutrality toward non-religion. It's not imposing either a non-religious perspective or a religious perspective.

I think what was important about Loyola was it really emphasized that aspect. You can't impose a non-religious perspective and say it fits with the [Quebec and Canadian] Charters. It's a nuance that is important, but it's not thought of in the same way. If it had been a strong Christian government that wanted to impose a Christian perspective, I think people would've seen what we were doing more clearly. In our case, we had a government wanting to impose a non-religious perspective [on a religious school]. It's classic in the sense that it's the exact same issue. What's not classic is that it's the imposition of a non-religious perspective versus a religious perspective.

C: I want to follow up on that, but just to finish on the issue of resources, when the Quebec Court of Appeal overturned the very clear ruling in Loyola's favour from the Superior Court, did you have to take a deep breath and say, "Do we really want to go ahead with this given the resources it's going to require?" Or was it, "We're in it now. Let's go"?

PD: That depends on which of the people making the decisions you speak to. There was definitely reflection that had to happen about whether or not to go forward. For me, it was clear. I didn't think there was any way we could not. It was the whole reason we went into it; but I think it certainly gave pause. When you win, it's easy. When you don't, that's when you've got to ask, "Is what we're doing worth the expense?" And I don't just mean that monetarily.

The expense of going forward was definitely a discussion, but it wasn't a long discussion. I think people understood the principle behind what we were doing.

C: Just to reframe that slightly, did you say to yourselves, "We have to go forward with this because this is what the Charter is for"? Or was it "We have to go ahead with this because this is what the school requires"?

PD: I would frame it a third way: "We have to go forward because this is the right thing." The idea behind that, I would say, overarches the two. Our laws have to reflect it. We really believe our laws do reflect it. From the perspective of what the school needs, the school has to act according to what it teaches. It's the right thing to do is the overarching principle.

C: Just to delve into the ruling itself, one of the things that's come up in discussions is unease about the language in Justice Abella's decision, albeit a 7-0 decision, about Quebec allowing a private religious school system to exist even after the dismantling of the denominational school system. Did you ever share a concern that winning might actually mean losing in that the government might turn around and say the problem here is that we allow private religious schools to exist, that we grant them exemptions. Off with their heads, we're not going to allow private religious schools anymore!

PD: The thought was definitely there. What we attacked was the application of regulation, and the thought was that one of the ways [the government could] handle a loss would be to change the regulation. Then we're right back to ground zero. That was there, but that would make things very awkward for the government and for other schools if they did change the regulation. I think that's why there was enough sense of security that they wouldn't do that, and it would be too much of an overhaul that would be required.

C: But in terms of the Charter being that bulwark against government overreach, as the court expresses it, or government intruding where it doesn't belong, ultimately that comes back to the State finding a workaround and achieving the result it wanted anyway. You have rights, but only insofar as the State can't find novel ways to violate them.

PD: Yes, because you still have the same Charter issue. You still have the same rights being infringed. The difference is that you have to challenge a different aspect. In this case, we challenged a decision based on existing laws, which was the appropriate way to go because the laws are there to protect Charter values. Now, if the laws changed and there were a new infringement, then it's a different challenge; but the same principle still applies. In other words, the recourse is still there but, yes, you'd be starting all over again.

C: A few summers ago, in the fight against Ontario's Bill 13, which mandates gay-straight alliance clubs at religious schools, Cardus got a legal opinion that the legislation very likely did violate the British North America Act provisions protecting denominational schooling in Ontario. But the caution was that any court victory based on the act could be a hollow victory. If anyone pushed it too far, we were counselled, the State could simply mandate there be no more Catholic schools in Ontario. The State would simply do away with them. It's a political clause and, therefore, the protection it offers could easily be done away with. It's a narrow line that you have to walk, isn't it? Even in Loyola's case, the end point was that you still had to go back and make application to the government, even though you came out of the Supreme Court with a clear victory.

PD: Yes. As far as religious rights go, especially as society changes and the focus becomes much more on the government being secular, with all of the possible meanings of that, what we really need to be pushing is the concept of religious freedom — you can be as secular as you like but leave room for those who are religious. That's what we have to keep focusing on: You have to leave breathing room for religious people and religious institutions to be able to operate according to their beliefs. Where we end up in difficulty is that any time you're dealing with government funding and the government making rules about its funding, things get more complicated. Where you're providing a service to the common good, it is proper for the government to provide space for you. It doesn't matter whether you're religious or not. It makes sense that there's funding.

I think we're in a transition in our society where we're trying to figure out whether or not secular governments can work with religious institutions.

C: Our history makes it even more complicated. We're not like the United States where, essentially, no public money goes anywhere near anything that's religious.

PD: It doesn't even work in the States, because they give money to Catholic hospitals for exactly the reason I cited: they're providing a service to the common good. I think as we move through this transition period, we have to be careful not to try to say that the government ought to take on the values that we have as Catholics, Christians, Jews or whatever but to emphasize the idea that [secularists] are obligated to give us room.

C: That was Justice Abella's statement in the Loyola decision, wasn't it? The secular State must respect religious diversity not seek to distinguish it?

PD: Absolutely. Religious difference, and I think it's a unique aspect of our case, doesn't just imply individuals being able to do what they want where they want. It also has implications for institutions. It could be religious or faith-based charities; it could be faith-based institutions of any type that are implicated in that decision as well — in this decision and in the whole principle.

C: The Court didn't answer the direct question about corporate Charter rights, but they did have some very strong language around the socially embedded nature of religious belief. I think that gets to what you're talking about, doesn't it? Belief is not just something an individual carries around in his or her head. It's Justice LeBel's comment that was quoted from the Hutterian Brethren decision that "religion is about religious beliefs, but also about religious relationships." It's not just me going to church on Sunday morning by myself.

PD: And what goes along with that is the right to found institutions. I think it may not go so far, but that's implied overall. A parish church is an institution as well as a place of community gathering. I think the relational nature of religion implies that the legal face of the community is a corporation or some type of institutional structure that has a legal face, and that's what needs protection.

C: One of your primary arguments when we did the tour across Canada was that this is not just about teaching Catholic students Catholicism and then having them let it rattle around in their heads. This is about sending them out into the world with that particular perspective and then engaging with the world out there. That itself is relational. They [go out the doors], have to connect with that world and try to bring as much of their Catholic understanding as they can with them. That's the relationship between the institution and the larger world you're trying to promote.

PD: It is the whole idea of contribution to the common good. People contribute to the common good, institutions contribute to the common good from what they are, not by putting it aside or watering it down in order to make it the least common denominator. It's the whole of you contributing to the common good. That's what makes the common good common. Again, this is what I think is really important in this period of transition. It's to say that Orthodox Jews, when they contribute to the common good, are not doing it as neutral people. They're doing it as Orthodox Jews. Christians are doing it as Christians and Loyola, in the service that it renders to society, does so as a Catholic school. That, to me, is really important in terms of understanding what the common good is and in defining what it is.

C: It's what's common, not what's cherry-picked.

PD: When we define the common good, we can't strip it of all those things because that's part of what it is to be a person, and that's true for atheists and agnostics as well. Just because they don't have a particular religious belief doesn't mean that that question isn't part of who they are. In fact, I believe it emphasizes that it is a question. The atheists have asked the question and answered it a particular way. That's what human beings do, and we can't ignore it when we talk about what the common good is. Ignoring it is a huge detriment to the human person — and I guess that is the point — including those who choose to believe there is no God.

C: Part of that, too, is identity: specificity of identity and ways of engaging with the world. It's funny, I was at an event a couple nights ago and had an argument with someone, surprisingly. As we were leaving, the fellow I was arguing with asked, "What year were you at Loyola?" I said, "I didn't go to Loyola. I grew up in B.C." He responded, "Oh, from the Jesuitical way you were arguing, I assumed you were part of that Anglo-Catholic Montreal diaspora that comes out of Loyola." He was a Loyola boy himself, and that particular way of engaging with the world becomes a part of how you identify in the world.

PD: When you talk about formation of a person, that's what Loyola wants to do. There's an identity that comes from the worldview, and that's what you're talking about. That worldview is, in a sense, like the Babylonian exile in a way. That, I think, is part of religious belief. Period. It's very strong, or we see it very strongly, in Catholic circles and, in a very particular way, among people from the Jesuit schools. But that's part of the nature of what religion is, of what faith is. You talk about it as identity. I don't think anyone can doubt that the question of faith is one that everyone asks, even if they answer it in the negative, "No, I don't have any faith" or "No, I don't want any faith." Every person asks that question. That is part of the human identity that manifests itself individually and collectively in institutions and people of faith. I don't think that's special, in the sense that the people on the other side of this, who would argue against Loyola, have that, too. It's just that the worldview that has been formed in them is a different one.

Until we can get to the point where we can say we know with absolute certainty what that worldview ought to be, we have to be in a place where our society allows people to explore. If we don't, we're essentially stripping humanity of what is in its nature.

C: One of the arguments from the other side, in favour of imposing the Ethics and Religious Culture program even on a private Catholic school, was the need for time for so-called cognitive dissonance. Yet it's obvious Loyola is the cognitive dissonance against the larger culture, right? It's the opportunity to say: "Wait a minute. What is it we're saying here?" Indeed, religious faith itself, in today's culture, is the cognitive dissonance, isn't it? Religious faith is about asking: "What? You believe what? What's that about?"

PD: I completely agree with that, especially in today's society. I read a newspaper column comparing Loyola to the comic book characters Asterix and Obelix, the little Gauls standing against the Romans. I thought it was a funny analogy, one that I both liked and disliked. I liked the idea of this strong, tiny little circle standing against a current movement. What I didn't like is the idea that it's holding up walls against an incursion that is bound to happen, and that it's purely defensive. I think we're at a point in understanding our role as Catholics — and really I'm saying religion in general — that we're never going to create a society that is faithful to or in keeping with Catholic understanding by making a pile of logs and building a wall. I don't think that's what we intend to do. Before societies can change, people have to change. It's not just a matter of making Lord's Day laws or having prayers at council meetings. That's not going to change the world. It has to be something that touches the hearts of people.

I think the refocusing that's happening right now is telling us to stop paying attention to that part, or at least to make sure that they leave us room. But then the focus has to be on working and changing the hearts of society by changing the hearts of people, not by making laws that are in keeping with our beliefs. It's a very different focus.

The part of the Asterix and Obelix comparison that I didn't like was the implication that we're just holding on. What I don't like is that that sounds almost as if we're defending against or building a wall around us to isolate us from the world. It's not that at all. It's a way of engaging the world that becomes part of who you are. What has to be happening in Catholic circles is we've got to be going out and touching the hearts of people as people, not as governments or legislatures.

C: That's compelling in light of comparisons made between Loyola and the prospects for Trinity Western University in its fight to open a law school. Although they may share legal similarities, would you agree that one of the uphill battles Trinity is having to fight is that it's perceived as an enclave that's trying to keep the world away from its door through its community covenant? It is perceived — falsely, those who know it well would say — of holding on to a code of behaviour that's self-isolating. That's what has set it up for the really horrible attacks it's suffered.

PD: Whether the perception is false, it challenges Trinity to ask itself this question: "Are we trying to separate ourselves from society or are we trying to find a way of engaging society? If it's the latter, then how do we get across that we're not trying to pull away from society, that we're trying to be a part of society as the people we are?" That's a challenge. I think it's one Loyola faces and it's one that Trinity definitely faces as well.

C: You're heading back in August in a whole new role as president of Loyola. For the first time in its history, it won't have a Jesuit priest leading it. What does the coming year look like over the summer for the victorious school at the corner of Sherbrooke and West Broadway in Montreal?

PD: That's a good question. Loyola's just gone through a strategic plan and that's going to have an impact on decision making; however, one of the main parts of that is... Because in the strategic plan was this idea that Father Murray, the Jesuit who is currently president, would be the last of the Jesuit presidents of the school — at least, the last for a while. The idea of maintaining — I would go further than that and say enhancing — the Jesuit nature of the school is going to be part of that strategic plan in the direction that Loyola takes. That identity needs to be built, more than just sustained. We need to examine how that identity plays in the world today. It's what Jesuits have always done.

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