The Supreme Court of Canada recently pronounced on the appropriateness of a municipal council insisting on a prayer before holding its meetings. In Mouvement Laique Quebecois v. Saguenuay (City), 2015 SCC 16, Justice Gascon for the majority (Abella J dissenting on the question of the variable test for judicial review of administrative tribunals) held that City of Saguenay’s bylaw which provided for the use of such a prayer, even if it did not derive from any particular denomination, nonetheless offended the freedom of religion of atheists and agnostics (the freedom not to believe) and was therefore inoperative.

Justice Gascon opened his reasons by making these observations (paras. 1-2):

[1] The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of human rights and freedoms, CQLR, c. C 12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian Charter”). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.

[2] The respondents, the City of Saguenay and its mayor, would like to continue the recitation of a prayer at the start of the municipal council’s public meetings. In their view, the issue is one of respect for their freedom of conscience and religion. The appellants, the Mouvement laïque québécois (“MLQ”) and Alain Simoneau, are asking that the respondents cease this practice, which, they submit, interferes in a discriminatory manner with Mr. Simoneau’s freedom of conscience and religion. They demand that the City and its official comply with the state’s duty of neutrality.

What is interesting to me is the degree to which the Court was prepared to go to ensure the secularity of the Canadian state. The actual words of the prayer adopted by the Council of Saguenay were based on the prayer used at the beginning of each day in the House of Commons. The prayer was as follows:

Almighty God, we thank You for the great blessings that You have given to Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as City Council members and help us to be aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions.
Amen.

This is far from the fire and brimstone type of prayer that could clearly cause religious offense. Frankly, this is a fairly mild form of discrimination (full disclosure here – I am not of any denomination and probably constitute an atheist – what I want to underscore here is the commitment to secularism that the Court appears to be making). Indeed the Court in this case not only enforced the principle of state secularism but also it upheld the damages awarded by the Quebec tribunal of $30,000.

While much of the judgment turned on the question as to what degree of deference should be given an administrative tribunal and the appropriate standard for judicial review, it is Justice Gascon’s comments about state neutrality on religious questions that I want to focus on.

The case focussed on ss. 3 and 10 of the Quebec Charter but Gascon J clearly linked those provisions to s. 2(a) of the Canadian Charter in developing his argument for a now constitutional requirement of state neutrality:

[65] Section 3 of the Quebec Charter protects the freedom of conscience and religion of every person:

3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

[66] Section 10 supplements s. 3 and prohibits discrimination based on various grounds, including religion:

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on . . . religion . . . .
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

[67] Section 2(a) of the Canadian Charter is the constitutional counterpart of s. 3:

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;

[68] Because of the similarity between s. 3 of the Quebec Charter and s. 2 of the Canadian Charter, it is well established that s. 3 should be interpreted in light of the principles that have been developed in relation to the application of the Canadian Charter (Boisbriand, at para. 42). In Big M, the Court considered the freedom of conscience and religion guaranteed by the Canadian Charter, and Dickson J. defined this freedom as follows:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is

the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. . . .

. . .

What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”. [Emphasis added; pp. 336 37.]

[69] This passage shows that freedom of conscience and religion protects the right to entertain beliefs, to declare them openly and to manifest them, while at the same time guaranteeing that no person can be compelled to adhere directly or indirectly to a particular religion or to act in a manner contrary to his or her beliefs (J. Woehrling, “L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse” (1998), 43 McGill L.J. 325, at p. 371; see also the comments of LeBel J. in Congrégation des témoins de Jéhovah de St Jérôme Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 65, although dissenting, he was not contradicted by the majority on this point).

[70] These protections are not limited to religious beliefs. The freedom not to believe, to manifest one’s non belief and to refuse to participate in religious observance is also protected:

Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non belief and refusals to participate in religious practice. [Emphasis added.]
(Big M, at pp. 346 47)

In S.L., at para. 32, Deschamps J. pointed out that freedom of religion includes the freedom to have no religious beliefs whatsoever. For the purposes of the protections afforded by the charters, the concepts of “belief” and “religion” encompass non belief, atheism and agnosticism.
[71] Neither the Quebec Charter nor the Canadian Charter expressly imposes a duty of religious neutrality on the state. This duty results from an evolving interpretation of freedom of conscience and religion. I will reproduce the following comments made by LeBel J. in Lafontaine in which he described the evolution of the concept of religious neutrality (although he was dissenting, the majority did not contradict him on this point either):

The duty of neutrality appeared at the end of a long evolutionary process that is part of the history of many countries that now share Western democratic traditions. Canada’s history provides one example of this experience, which made it possible for the ties between church and state to be loosened, if not dissolved. There were, of course, periods when there was a close union of ecclesiastical and secular authorities in Canada. European settlers introduced to Canada a political theory according to which the social order was based on an intimate alliance of the state and a single church, which the state was expected to promote within its borders. Throughout the history of New France, the Catholic church enjoyed the status of sole state religion. After the Conquest and the Treaty of Paris, the Anglican church became the official state religion, although social realities prompted governments to give official recognition to the status and role of the Catholic church and various Protestant denominations. This sometimes official, sometimes tacit recognition, which reflected the make up of and trends in the society of the period, often inspired legislative solutions and certain policy choices. Thus, at the time of Confederation in 1867, the concept of religious neutrality implied primarily respect for Christian denominations. One illustration of this can be seen in the constitutional rules relating to educational rights originally found, inter alia, in s. 93 of the Constitution Act, 1867.

Since then, the appearance and growing influence of new philosophical, political and legal theories on the organization and bases of civil society have gradually led to a dissociation of the functions of church and state; Canada’s demographic evolution has also had an impact on this process, as have the urbanization and industrialization of the country. Although it has not excluded religions and churches from the realm of public debate, this evolution has led us to consider the practice of religion and the choices it implies to relate more to individuals’ private lives or to voluntary associations (M. H. Ogilvie, Religious Institutions and the Law in Canada (2nd ed. 2003), at pp. 27 and 56). These societal changes have tended to create a clear distinction between churches and public authorities, placing the state under a duty of neutrality. Our Court has recognized this aspect of freedom of religion in its decisions, although it has in so doing not disregarded the various sources of our country’s historical heritage. The concept of neutrality allows churches and their members to play an important role in the public space where societal debates take place, while the state acts as an essentially neutral intermediary in relations between the various denominations and between those denominations and civil society. [Emphasis added; paras. 66 67.]

[72] As LeBel J. noted, the evolution of Canadian society has given rise to a concept of neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard. This neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non belief (S.L., at para. 32). It requires that the state abstain from taking any position and thus avoid adhering to a particular belief.

Gascon J summed up his analysis of the emergence of the doctrine of state neutrality in par. 76:

[76] When all is said and done, 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. It is prohibited from adhering to one religion to the exclusion of all others. Section 3 of the Quebec Charter imposes a duty on the state to remain neutral in this regard. Today, the state’s duty of neutrality has become a necessary consequence of enshrining the freedom of conscience and religion in the Canadian Charter and the Quebec Charter.

Of note is that nowhere in the judgment of Gascon J (or for that matter in the judgment of Abella J dissenting on the issue of the applicable standard of judicial review) is there mention of one of the central decisions of the Court on freedom of religion and discrimination – namely, Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31. I do not think that that omission was an oversight. The Court has left open the question about how to resolve the thorny intersection between freedom of religion on one hand and the state’s obligation to equality and non-discrimination on the other. This latest decision should be considered as another installment on the reconsideration of the Court of that difficult issue, an earlier installment made this year in Loyola High School v. Quebec (Attorney General), 2015 SCC 12 and commented on by me in an earlier post.

I remain

Constitutionally yours

Arthur Grant