Organizations get religion: Loyola high school v. Quebec.

• Author: Bowal, Peter

Introduction

Do organizations and corporations have a constitutionally protected freedom of religion under the Canadian Charter of Rights and Freedoms?

The Charter has existed for 34 years and we are still not clear whether non-human entities enjoy religious freedom as they do other freedoms, such as expression. The Supreme Court of Canada last year had an opportunity to answer that in Loyola High School v. Quebec [http://canlii.ca/t/ggrhf]. It took a small, but important, step in that direction.

The Individual Nature of Charter Freedoms

The Charter rights and freedoms were intended for human beings. There are collective, public interest dimensions in how they operate, such as in the limitations clause (section 1) and the override clause (section 33). Many freedoms require a balance of individual and public interests on reasonableness grounds. Pierre Trudeau wrote that "only the individual is the possessor of rights." Chief Justice Dickson said the purpose of religious freedom was to ensure that "every individual be free to hold and manifest whatever beliefs and opinions his or her conscience dictates..." Section 28 of the Charter suggests that it is only intended to apply to human beings: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."

On the other hand, section 2 rights and freedoms are granted to different legal persons. In some cases, the right is conveyed to "everyone" (the freedom of religion is included in this group), to "any person", to "every citizen", to "any member of the public in Canada", and to "every individual."

It has been established for well over a century that corporations are "legal persons" (though they are not citizens or individuals) and enjoy the same status as human beings. Therefore, freedoms conferred on "persons" and "everyone" should belong equally to human beings and companies. The Charter freedoms of expression, freedom from unreasonable search and seizure and trial within a reasonable time are already conferred on companies. What about the freedom of religion?

But the law is never that simple. Some Charter rights marked for "everyone", such as the right to life, liberty and security of the person (section 7), have been held by the Supreme Court of Canada to be unavailable to corporations. The Court said: "only human beings can enjoy these rights. 'Everyone' then, must be read in light of the rest of the section and...