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.