On April 15, 2015, in Mouvement laïque québécois, et al v. City of Saguenay, et al, 2015 SCC 16, the Supreme Court of Canada ended a lengthy judicial dispute that centered on private faith and state secularism in Québec. In a case that will likely have repercussions all across Canada, the SCC held that the Mayor's recitation of a Catholic prayer while making the sign of the cross before public council meetings was discriminatory and breached the State's duty of neutrality.
Judicial History
Alain Simoneau, an atheist resident of Saguenay, attended municipal council meetings where councillors and officials recited a prayer at the start of council proceedings. These prayers were permitted by a city by-law. Mr. Simoneau and the Mouvement laïque québécois (or Québec Secular Mouvement) filed a complaint against the City of Saguenay with the Québec Human Rights Tribunal (QHRT) in 2006. They alleged that this practice and by-law violated Mr. Simoneau's freedom of conscience and religion pursuant ss 3, 4, 10, 11 and 15 of the Québec Charter of Human Rights and Freedoms and breached the State's duty of neutrality.
The QHRT ordered an end to the prayers, demanded that all religious symbols be removed from the chamber and awarded Mr. Simoneau $30,000 in compensatory and punitive damages.
In 2011, the Québec Court of Appeal set aside the Tribunal's decision on the basis that the content of the prayer did not violate the duty of neutrality imposed on the State and that, even if the prayer interfered with Mr. Simoneau's Charter rights, the interference was trivial or insubstantial.
The Court's Decision
The main issues for the Court were the State's duty of religious neutrality and the infringement of Mr. Simoneau's rights (i.e. his right not to be discriminated against on the basis of religion).
The Court allowed the appeal and restored the QHRT's conclusions (1) that the by-law does not apply to Mr. Simoneau; (2) ordering the respondents to cease the recitation of the prayer in the chambers where the municipal council meets; and (3) ordering the respondents jointly to pay Mr. Simoneau $33,500 in damages.
To answer the main question in appeal, Justice Gascon, writing for the Court, began by addressing the appropriate amount of deference that should be given by the Court of Appeal when reviewing the QHRT's decision, i.e. the applicable standard of review. The SCC opined that the choice of the applicable standard depends primarily on the nature of the questions that have been raised. Gascon J. noted that, on judicial review of a decision of a specialized administrative tribunal, such as the QHRT, interpreting and applying its enabling statute, and acting in its specialized area of expertise, the reviewing court should presume that the standard of review is reasonableness and show deference to the tribunal.
In this case, the Court held that the Court of Appeal erred in applying the stricter standard of correctness to all the QHRT's conclusions while assessing the expert evidence on the basis of "palpable and overriding error". Although the standard of correctness applied to the question of law relating to the scope of the state's religious neutrality, reasonableness applied to the questions within the Tribunal's specialized expertise: whether the prayer was religious in nature, the extent to which the prayer interfered with Mr. Simoneau's freedom, the determination of whether the City's practice was discriminatory, the qualification of expert witnesses, and the assessment of the probative value of their testimony.
Madam justice Abella, in concurring reasons, noted that the majority's decision to use different standards of review for different aspects of an administrative decision was a departure from the most recent jurisprudence and could undermine the framework for how decisions of specialized tribunals are generally reviewed. Indeed, it was thought that since the Court's decisions in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, at para. 100 and Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 SCR 458, segmentation – where different standards are applied to separate issues – should only be used in exceptional cases.
On the issue of the recitation of the prayer, the Supreme Court reversed the Court of Appeal's decision and found that the QHRT's finding that Mr. Simoneau had not been treated fairly in relation to other citizens attending council meetings was reasonable. According to the Court, the State will breach its duty of neutrality in the context of a complaint of religious discrimination if the complainant proves that:
- The state is professing, adopting or favouring one belief to the exclusion of all others; and
- The exclusion has resulted in interference with the complainant's freedom of conscience and religion.
As per Syndicat Northcrest v. Anselemen, 2004 SCC 46, in order to determine whether an infringement of the freedom of religion has occurred, the tribunal must be satisfied that:
- The complainant's belief is sincere; and
- The complainant's ability to act in accordance with his or her beliefs has been interfered with in a manner that is more than trivial or insubstantial.
Mr. Simoneau's belief in atheism was found to be sincere, as he felt isolated, uncomfortable and excluded during council meetings. The Court held that the prayer and the exhibition of religious symbols resulted in an interference with his freedom of conscience and religion for the purposes of ss 3 and 10 of the Québec Charter, which was more than trivial or insubstantial, and that the interference was discriminatory. Justice Gascon added that: "the state's duty to protect every person's freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others."
Consistent with previous decisions on matters of state neutrality, the Court ruled that the State's duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. The Court emphasized that "neutrality is required of institutions and the state, not individuals (...) On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person's freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society(...)."
Concluding Remarks
This decision makes it clear that public governance events, such as city council meetings, should not include prayers specific to a single religion. Such actions are denominational and exclude believers of different faiths, atheists and agnostics alike. While the decision is based on the Québec Charter, the province's legislation corresponds to the Canadian Charter of Rights and Freedoms' s. 2(a) protecting freedom of religion. As a result, this will inevitably have a strong impact on municipal councils across Canada, and perhaps will apply to all three levels of government (although an argument that parliamentary privilege applies to the House of Commons and Senate, as well as the provincial legislatures, may also succeed). Several municipalities, such as Ottawa, Windsor and Dieppe, have already suspended their morning prayer, in order to be respectful of their residents' different beliefs.
The decision is not all-encompassing, however; it leaves open the question of what is permissible in the context of a prayer and the display of religious symbols. Given that the Court ruled that culture or history do not provide suitable grounds to preserve state-endorsed religious expression, it will be interesting to see how this decision is interpreted in light of other similar issues, such as the recitation of a prayer in the House of Commons and the inclusion of the line "il sait porter la Croix" or "he can carry the Cross" in the French lyrics of the National Anthem. Even though religious symbols were not addressed in the decision, this case may be relied upon in support of a complaint against their display in public spaces, for example, the crucifix overlooking the speaker's chair in the Québec National Assembly and the cross atop Mount Royal in Montreal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
