[Editor’s Note: This is the third entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here. Part I of our symposium is available here and Part II is available here.]
—Howard Kislowicz, Assistant Professor, Faculty of Law, University of Calgary
Two of Chief Justice McLachlin’s opinions highlight an ongoing tension in the religious freedom debates: whether such religious freedom rights can be held collectively and/or by institutions. In the first case, Hutterian Brethren, Chief Justice McLachlin appeared to minimize the collective religious freedom claim of a religious group known for its communitarian worldview. In the second case, Loyola, Chief Justice McLachlin co-authored a concurring minority view that took the collective aspects of religious freedom so seriously that it set out a framework for analyzing the religious freedom claims of institutions. In what follows, I focus in more detail on the differences in approach of these two cases. I conclude by noting that one reason the collective/individual question is so fraught is because admitting of a collective right is, in a sense, a cession of some jurisdiction of the state. As suggested by a scholarly essay of the Chief Justice, the state’s preference is to make room “within the rule of law” for religious diversity while retaining its ultimate authority.
In Hutterian Brethren, at issue was an Alberta regulation making photographs on driver’s licences universally mandatory. The provincial government planned to use digitized photos in a database designed principally to prevent identity fraud. The province had previously granted an exemption for those with religious objections. The Hutterian Brethren of Wilson Colony challenged the regulation. They objected to being photographed based on their interpretation of the Second Commandment, which prohibits graven images. They also argued that they lead a collective lifestyle in keeping with their religious commitments and attempt to be as self-sufficient as possible. They claimed that the photo requirement would interfere with this aspect of their religious observance as they would need to hire non-members to perform driving-related tasks.
For the majority, the Chief Justice responded to these arguments by holding that while “religious freedom has both individual and collective aspects,” it was “important to be clear about the relevance of those aspects at different stages of the analysis in this case.” In her view, the impact on the community’s functioning should be considered when assessing the proportionality of the regulation, not when assessing the right’s infringement. “Community impact does not… transform the essential claim — that of the individual claimants for photo‑free licences — into an assertion of a group right.”
In the end, the Chief Justice was convinced that the government’s objective of maintaining the integrity of its photo database outweighed the religious freedom infringement and impact on the community. She was not persuaded that “arranging alternative means of highway transport would end the Colony’s rural way of life.” The opinion does not deal directly with the collective aspect of the religious freedom claim by the Wilson Colony members. Instead, it individualizes their religious objection, and considers the impact on the community without noting the religious significance of the Colony’s self-sufficiency.
In contrast, Chief Justice McLachlin struck out in a different direction in her minority concurring reasons in Loyola (co-authored by Justice Moldaver). In that case, a private Catholic school in Montreal sought an exemption from teaching a mandatory Ethics and Religious Culture program designed by Québec’s Ministry of Education. Loyola’s objection was not to the goals of the program – the recognition of others and the pursuit of the common good – but to the mandated posture of neutrality on religious and ethical questions. Loyola proposed an alternative program to be taught from a Catholic perspective. The Minister denied the exemption on the grounds that Loyola’s proposed alternative was not neutral as between religious perspectives.
Loyola was successful in its review of the Minister’s decision and Chief Justice McLachlin’s concurring opinion doubles down on the collective aspects of religious freedom. While the majority does not answer the question whether a religious institution could make a religious freedom claim on its own behalf, Chief Justice McLachlin’s opinion develops a framework for adjudicating the religious freedom claims of institutions. Rather than saying that the members of Loyola’s community could litigate collectively to assert the collective aspects of religious freedom, the Chief Justice’s opinion specifically allows a religious institution to make a claim on its own behalf. This is a strong version of the recognition of collective religious freedom and seems a far cry from the majority decision in Hutterian.
How might one explain the divergences in these two opinions? The differing facts likely impacted the way the Chief Justice saw the two cases. She was careful in Hutterian to restrict her analysis to “this case” and the evidence before her. But we might also see the contrast between the opinions as a window into one leading jurist’s struggle to confront the competing demands of protecting religious freedom while maintaining state institutions’ ultimate authority.
Writing in an academic context, the Chief Justice once presents the rule of law and religion as making competing claims of authority over their subjects. “The authority claimed by law touches upon all aspects of human life and citizenship,” she writes, and there are similarly no “limits to the claims made by religion upon the self.” Even as she ponders how “the rule of law [can] accommodate a worldview and ethos that asserts its own superior authority and unbounded scope,” she notes that it is “the courts that are most often faced with this clash and charged with managing” the competing claims of law and religion. In other words, while the Canadian legal experience has been one that, in the Chief Justice’s view, accommodates religious diversity, there is no question that the law should continue to rule. The competition between worldviews is never a close one; it will be the courts that decide how far religious freedom extends and when it must be reined in. Perhaps anxiety about the rule of law’s continued authority helps explain judicial reticence about collective rights. Group autonomy is a threat to law’s rule because it can operate as a cession of jurisdiction. If a group bears a right, there might come a point when the group’s decision binds its members in ways with which courts are uncomfortable. Finding space within the rule of law for such group-level autonomy is a difficult task, and different facts can push the same jurists in contrasting directions on the question of collective rights.
Suggested Citation: Howard Kislowicz, I-CONnect Symposium on The Legacy of Chief Justice Beverley McLachlin–Part III: Chief Justice McLachlin, Collective Religious Freedom Rights, and the Space for Religion within the Rule of Law, Int’l J. Const. L. Blog, Dec. 6, 2017, at: http://www.iconnectblog.com/2017/12/kislowicz-on-chief-justice-mclachlin
 Alberta v Hutterian Brethren of Wilson Colony,  2 SCR 567.
 Loyola High School v Quebec (Attorney General), 2015 SCC 12.
 Alberta v Hutterian Brethren of Wilson Colony, supra note 1 at para 31.
 Ibid at para 97.
 Loyola, supra note 2 at para 34.
 Ibid at para 100.
 Ibid at paras 31, 97–98.
 The Right Honourable Beverley T McLachlin, PC, “Freedom of Religion and the Rule of Law: A Canadian Perspective” in Douglas Farrow, ed, Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (Montreal: McGill-Queen’s University Press, 2004) 12 at 14–15.
 Ibid at 22.