The Shadow of Mouvement laÏque v. Saguenay – Freedom “of” Religion, or Freedom “from” Religion?

WHAT IS MAINSTREAM RELIGION?

There are many faiths in this world of ours. These range from about 36 (“thirty-six”) mainstream ones;[1] through a handful of known or colonially-inspired and often derided, or not so widely accepted or even historically acceptable ones;[2] to the very many thousands of traditional beliefs, and “new-age” faiths.[3]

Just as there exists this multiplicity, there is also a wide variety of state systems within which they operate. These range from sole state religions, as in the case of Saudi Arabia; tolerant Islamic states (including Iraq under Hussein, Libya under Ghaddafi, and Syria under both Assad Senior and Assad Junior), all of which allowed or still try to protect, the existence and exercise of myriad Islamic branches, Christianity, and Judaism; preferred state religions – witness the preference for Chinese Buddhism over Tibetan Buddhism; and systems where a dominant mainstream religion co-exists with others as with India’s many Christians, Moslems, and members of other faiths, or in the tolerance of Japanese mainstream Shinto for several other faiths. The predominant peace under tolerant mainstream systems compares quite starkly with rising religious strife in many parts of the world, including Africa, Europe, or other jurisdictions where relatively stable systems, despite their real or alleged imperfections, were dramatically and lastingly upset of recent.

WHY THE FUSS?

Into this milieu, steps the Supreme Court of Canada, with a recent ruling based on freedom of conscience and religion,[4] but it works to promote freedom from conscientious religion in a multicultural and pantheistic democracy. This slippery slope raises the stakes as the decision promoted Atheism, which, being a non-religion (by self-definition), is free to be raised above mainstream, new age, and traditional faiths. Over time, as one or more mainstream faiths quaver under this rising pressure, will the other mainstream faiths stand together to defend their uncommon ground,[5] or will they join the fray and squeeze one another until all are equally diluted, or banned outright in their public exercise as offensive to Atheism – because the state cannot be seen (or be alleged) to have favoured one or some, over the others whether within the province of Quebec,[6] or within the entire Canadian Federation?[7]

Also, looking more closely at the globally-pervasive United States currency, our neighbor to the south (which reads “In God we trust”), and listening to elected and electioneering politicians all over the world who consistently ask God to bless both their electorates and nations, one starts to see how widespread religion truly is, and what it would mean if all this were to suddenly be declared unconstitutional, and/or ordered to cease. This goes far beyond the case at bar, and begs the further question: can government entities in Canada (and government-licensed or government-regulated entities, such as municipalities and the banks) one day be barred from trading, holding, or aiding Canadians in using, U.S. currency?

This may all seem like absurd scaremongering at this time. However, the shadow cast by the decision has potentially far-reaching consequences, as I will show with the following analysis and conclusions.

EARLIER RULINGS:

In the Canadian City of Saguenay, Quebec, the mayor would commonly commence and end City Council meetings with a prayer.[8] There were also religious symbols in some City Council chambers. Alain Simoneau, a resident of Saguenay who regularly attended these meetings of the City Council, found this all to be religious and therefore offensive to his own Atheist status, and so Simoneau had initially asked the Mayor to stop the practice.

The Commission.

When the Mayor refused, Simoneau sought relief at the Quebec Commission des droits de la personne et des droits de la jeunesse (hereinafter the “Commission”) for violation of his rights under sections 3 and 10 of the Quebec Charter of Human Right and Freedoms.[9] The Commission focused on whether the prayer was discriminatory (choosing not to consider the religious symbols, and so stating) and found so in the affirmative; however, it left Simoneau to pursue his claims further on his own, at the Human Rights Tribunal (hereinafter “Tribunal”).[10]

The Tribunal.

As this was happening, the Saguenay City Council passed a Bylaw changing the prayer’s wording and providing for a break between the prayer’s recitation, and the actual start of its meetings.[11] In addition, Simoneau was joined in his complaint to the Tribunal by the Mouvement laïque québécois (hereinafter “MLQ”), with a joint and amended application that now also sought a declaration that the Bylaw was ineffective and of no force or affect as against S.[12] The Tribunal found an actual and detrimental breach of the state’s duty of religious neutrality and granted the declaration,[13] awarding S $30,000 in compensatory and punitive damages (of the $50,000 originally sought), and ordering that the City and mayor cease and desist in the prayer within council chambers and remove all religious symbols (including a Sacred Heart statue and a crucifix) from rooms where council meetings were held.[14] The City Council and mayor appealed, and the Quebec Court of Appeal reversed the Tribunal’s decision.[15]

The Quebec Court of Appeal.

The Quebec Court of Appeal made sure to first note the implicit duality of modern religious freedom, at paragraph 59 of its decision:

“Freedom of religion exists in two distinct forms. The first, characterized in case law and commentary as the positive aspect doctrine […] is essentially the recognition that every person has the right to hold religious beliefs and to profess them openly. The second is expressed in a negative form in that it is forbidden to impose coercion or constraint upon the choice to act in accordance with one’s conscience or to impose a religious choice.” [16] [Emphasis added].

Citing to the evidence of the expert witnesses before the Tribunal, Gagnon, J.A. wrote at paragraph 88, that: “I take from the opinions of these experts that the values expressed by the prayer at issue are universal and cannot be identified with any particular religion. According to these experts, this prayer is consistent with modern theistic doctrine, open to some reasonable non-invasive and religious particularities.”[17] [Emphasis added]. Further bolstering this conclusion, Gagnon, J.A. also noted the ongoing recitation of prayer in the House of Commons (albeit with the doors closed to the public),[18] the affirmation of God’s supremacy in the preamble to the Canadian Charter of Rights and Freedoms (Charter),[19] and adoption of a resolution by the Quebec National Assembly in May, 2008, to preserve the cross in its blue room and on the Quebec Coat of Arms,[20] to conclude that: “[i] am convinced by these examples that the principle of the religious neutrality of the State is intended to promote tolerance and openness in regard to diversity and not to exclude from the reality of a society any references to its history, albeit religious.” […] “I conclude, on the basis of the foregoing, that the content of the prayer included in Bylaw VS-R-2008-40 cannot constitute an infringement to the neutrality of the City.”[21] In reversing the Tribunal decision, Gagnon, J.A., ruled that any constraint on the stated rights of Simoneau by the infringement, was therefore “trivial or insubstantial”.[22] In addition, the religious symbols were “for a significant portion of the population, deprived of their religious connotation (…).”[23] In the final analysis, he wrote: “(…) I add that it has not been shown that Simoneau was the subject of a distinction in violation of the principles of substantive equality. In any event, the demonstration of harm is non-existent here.”[24]

Far from being one-sided, however, he did rebuke the mayor of Saguenay for being so cavalier in freely expressing his personal religious beliefs – by crossing himself so brazenly while in public office, and openly bragging of his love for and support of Christ.

“These are words and behaviour that reflect a basic lack of reserve from one who holds an elected position and participates in the governance of the City on a daily basis. It seems quite inappropriate that a prestigious office could be used to promote one’s own personal religious beliefs. Moreover, nobody has argued before this Court that the voters of the City of Saguenay chose their representatives for their avowed belief in any divinity.”[25]

Concurring in the overall result but disputing the choice of Gagnon, J.A., to deal with the issue of religious symbolism (which the Tribunal had exceeded its authority in addressing), Hinton J.A., wrote that: “[t]he issue of religious symbols is both delicate and difficult. In the context of this appeal, there are certainly distinctions to be made between the legality of a 20-second, non-denominational prayer recited in public before the opening of the Council meetings of the City Saguenay when it is still possible to leave the room and the permanent presence of religious symbols in two of the City’s three meeting rooms, on the other.”[26] But, as Hinton J.A. rightly and perhaps clairvoyantly stated, the matter would likely still arise at a time and place in which it could be more timely and more fully addressed.

“In light of this, it is certainly possible that the issue of the legality of crucifixes in courtrooms where trial judges always sit (many of whom are not Catholic or of any denomination) will be debated some day. Ultimately, courthouse courtrooms serve the entire population of Quebec, including its interconfessional and non-denominational components.”[27]

AT THE SUPREME COURT:

The Supreme Court of Canada diverged completely from the prevailing conclusion of the Quebec Court of Appeal that “[w]hile Simoneau does invoke several irritants that he elevates to the level of injury, his arguments do not withstand scrutiny.”[28] The Court therefore reversed the Quebec Court of Appeal, modified the prevailing standard of review, and re-affirmed the original decision of the Tribunal.[29]

Preceded and followed by the Councilors making the sign of the cross and the mayor stating: “[i]n the name of the Father, the Son and the Holy Spirit”,[30] the text of the offending prayer as used between 2002 and November of 2008, read:

[TRANSLATION] “O God, eternal and almighty, from Whom all power and wisdom flow, we are assembled here in Your presence to ensure the good of our city and its prosperity.

We beseech You to grant us the enlightenment and energy necessary for our deliberations to promote the honour and glory of Your holy name and the spiritual and material [well-being] of our city.

Amen.”[31]

As reproduced by the Court, the Bylaw, VS-R-2008-40, adopted by council on November 3, 2008, read in pertinent part as follows:

“[TRANSLATION] WHEREAS there exists within the City of Saguenay a tradition to the effect that Council meetings [are preceded by] the recitation of a prayer, the text of which is reproduced below;

WHEREAS the purpose of this tradition is to ensure decorum and highlight the importance of the work of the councillors;

WHEREAS the members of Council, unanimously, want this tradition to continue and wish to pursue it on the basis of their individual rights and freedoms, in particular their rights to freedom of expression, conscience and religion;

WHEREAS it is important to specify that the Council members and the public are in no way obligated to recite this prayer or attend its recitation;

WHEREAS it is important to ensure that members of the Council and of the public who do not wish to attend the recitation of this prayer may nevertheless attend the Council session in its entirety;

NOW THEREFORE, it is enacted as follows:

SECTION 2 — Bylaw VS-2002-39 is amended to add section 16.1, which provides the following:

SECTION 16.1 — Once the chairperson of the meeting enters the Council deliberation room, the Council members who wish to do so may rise to recite the traditional prayer, the text of which is reproduced below.

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.

To allow Council members and the public who do not wish to attend the recitation of the prayer to take their places in the room, the chairperson of the meeting will declare the Council session open two minutes after the end of the recitation of the prayer.”[32]

In the Quebec Court of Appeal, Gagnon, J.A. had ajudged the Tribunal to be a specialized body considering a matter of public importance, but one over which it lacked exclusive jurisdiction; and therefore he had chosen to apply the “correctness” standard of review to the overall decision.[33] However, regarding evidence admitted by the Tribunal from an improperly qualified expert, Gagnon, J.A. ruled that, “(…) this Court has the duty to intervene, when warranted by circumstance, if it is established that there has been a palpable and overriding error on this issue.”[34] Writing for the supermajority of the Supreme Court, Gascon J, put an end to this bifurcation of standards on appeal.

“First, Gagnon J.A. applied both administrative law principles related to judicial review (the correctness standard) and tests applicable to appeals (palpable and overriding error). With respect, the result is a confusing conceptual hybrid. Given the current state of the Court of Appeal’s case law on this point, it seems to be hard for litigants to understand the rules. Clarification is needed to ensure greater consistency and some predictability. Where, as in this case, a statute provides for an appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are, in light of the principles laid down by this Court, the ones that apply on judicial review, not on an appeal.”[35] [Emphasis added].

Further, citing the line of reasoning developed in the 2002 Supreme Court case of Housen v. Nikolaisen,[36] Gascon J, wrote that “[w]here an appeal concerns a question of law, intervention is required if the decision is incorrect. Where an appeal concerns a question of fact or a question of mixed fact and law, intervention is warranted if there is a palpable and overriding error.”[37] Weighing one (albeit obiter) line of reasoning in the Quebec Court of Appeal that permitted review of a decision based on expanded criteria not considered below or as otherwise limited by traditional judicial review,[38] against a competing line of reasoning in that same court that frowned on such practices,[39] Gascon J, ruled that with regard to the state’s duty of neutrality on the question of religion itself, “I am of the opinion that, in this case, the Court of Appeal properly applied the correctness standard on this question.”[40] Subsequently, with regard to the remaining questions and indeed the entirety of the case, he then used a different line of Supreme Court cases and reasoning,[41] to conclude as follows:

“However, it was not open to the Court of Appeal to apply that standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard. For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise. The same is true of the qualification of the experts and the assessment of the probative value of their testimony, which concerned the assessment of the evidence that had been submitted. The Tribunal is entitled to deference on such matters. The only requirement is that its reasoning be transparent and intelligible. Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”[42] (Citations omitted). (Emphasis added).

Gascon J, also and unequivocally agreed that the Court of Appeal had properly concluded that it lacked jurisdiction to consider the religious symbols at issue,[43] because “where a complainant has a right to submit his or her own application to the Tribunal, the scope of the remedy is limited by the work done beforehand by the Commission. The Tribunal’s jurisdiction is circumscribed by that work. In a discrimination case, the application to the Tribunal is intended to be an extension of the investigation conducted by the Commission in response to a complaint.”[44] In essence, matters not considered, were unavailable for a later ruling by a court of review, because there was, essentially, nothing to review.

On the question of the prayer itself, and its discriminatory nature, Gascon J, stated the rule that, “[i]n a case such as this, the practice of reciting the prayer and the By-law that regulates it result in the exclusion of Mr. Simoneau on the basis of a listed ground, namely religion. That exclusion impairs his right to full and equal exercise of his freedom of conscience and religion.”[45] From there, he further stated that, “[f]or the purposes of the protections afforded by the charters, the concepts of “belief” and “religion” encompass non-belief, atheism and agnosticism.”[46]

Defining the scope and impact of the state’s duty of neutrality per se, which promotes “diversity and multiculturalism”[47] and remains “based on a democratic imperative”[48], Gascon J, iterated that:

“By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (…).”[49]

He further took issue with the conclusion at the Court of Appeal that perfect neutrality must bow to “benevolent neutrality”,[50] due to certain historical and cultural precedents, wherein he stated that,

“If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. If that religious expression also creates a distinction, exclusion or preference that has the effect of nullifying or impairing the right to full and equal recognition and exercise of freedom of conscience and religion, there is discrimination.”[51]

Gascon J, also found that the Oakes balancing test applied to any analysis of section 9.1 of the Quebec Charter of Human Rights and Freedoms,[52] – as equivalent to section 1 of the Canadian Charter of Rights and Freedoms,[53] when the offending Saguenay prayer and Bylaw were considered against that section 9.1. Even then, though, neither prayer nor Bylaw could be saved from invalidity under such analysis,[54] and the Quebec Court of Appeal had also erred in finding the Tribunal’s qualification of Simoneau’s expert improper.[55]

On a final note, Gascon J, distinguished the instant case from Allen v. Renfrew County,[56] an Ontario case wherein a similar prayer recitation by council was deemed not to be an infringement of the rights of others.[57] He further distinguished between abstaining from religion (which he deems true neutrality), and taking a stance for atheism and/or agnosticism (which he deems unbelief); writing at paragraph 133:

“A practice according to which a municipality’s officials, rather than reciting a prayer, solemnly declared that the council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude such a position, the effect of which would be to exclude all those who believe in the existence of a deity.”[58]

Then, however, Gascon J, hurriedly dismissed both the strong Allen precedent and the Freitag obiter from the Court of Appeal for Ontario as inapplicable, on the ground that the latter decision “does not close the door on the application of the justificatory provision”, which provision the Tribunal in the instant case had deemed of no recourse.[59] Also declining to consider the prayer practices of the House of Commons – citing a lack of evidence before it on the purpose of the prayer and speculating that it might, nevertheless, be protected by Parliamentary privilege, Gascon J, concluded in addition that “it would be inappropriate for the Court to discuss its content or to use it to support a finding that the City’s prayer is valid.”[60] Further, regarding the Charter preamble which reads: “[w]hereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:”[61], that is a mere articulated ““political theory”” underlying those Charter protections.[62]

“Thus, the reference to God in the preamble cannot be relied on to reduce the scope of a guarantee that is expressly provided for in the charters.”[63]

From that point onwards, the Court’s conclusions stand out as worthy of note. For example, the Tribunal’s ultra vires declaration of invalidity (“inoperative and invalid”) with regard to the offending bylaw, was also amended, retroactively, and read-down, to be a simple declaration of inoperability.[64] Then, the Tribunal’s compensatory damages award, although based on admittedly improper grounds, was also left to stand.[65] In addition, although conceding with regard to the Tribunal’s punitive damages, “that in civil law such damages are an exceptional remedy”,[66] the Tribunal’s award of same was left to stand without any consideration of the Supreme Court’s own longstanding test for such awards that was annunciated in Whiten.[67] Instead, the Court chose to follow (and affirm) the Tribunal’s reliance for its punitive damages award on de Montigny v. Brossard (Succession), 2010 SCC 51 (CanLII), [2010] 3 SCR 64 – which distinguished Whiten at its own paragraph 54,[68] and Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211 – which preceded Whiten in time by a full 6 (“six”) years but gave the test for “punitive damages” – being in the court’s discretion as opposed to mandatory, in cases alleging violation of the Quebec Charter.[69]

An onlooker may be excused for feeling that the offending conduct was stretched to fall within the test. To whit, the law states: “[i]n case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”[70]

Whereas, the cited case provided – and I think it useful to recite the entire paragraph, that:

“Consequently, there will be unlawful and intentional interference within the meaning of the second paragraph of s.49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence. Thus, an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test.”[71] [Emphasis added].

Efforts by the mayor and council to comply with the law by amending the prayer and procedures around it to more closely follow apparently good caselaw, can hardly be seen as “unlawful and intentional interference”. The mayor’s boasts alone, showing his state of mind and intent to exercise his own rights to religious freedom, although admittedly “wild and foolhardy” for someone in his position, can hardly be elevated to any desire or intent to cause harm to Simoneau.

SHADOW IMPLICATIONS:

This decision clearly puts an end to overtly religious prayer, in public, before or during council meetings across Canada. However, like-minded councilors may still pray together on their own before entering the council chambers, and it is arguable that non-denominational prayers may still be acceptable – for now. Moments of silence appear to be fine, providing that there are no religious outbursts or cries of “Amen”, that would put such silence practices into disfavor, disrepute, or suspected lack of neutrality.

Does the Saguenay case explicitly overrule Allen (prayer, even if Christian, can be allowed in certain cases)? I would say yes! Does the Saguenay case invalidate Freitag’s obiter (non-denominational prayers might still be allowed, in certain cases and with proper safeguards)? I would say almost! The Supreme Court will likely wait until another case puts that practice squarely within its pleas for relief.

It would seem that freedom OF religion has now become freedom FROM religion under Canadian caselaw and Human Rights Codes. However, this wholesale move towards total religious neutrality puts Canada on a very slippery slope in the overly broad shadow now cast across all faiths by the decision. I will illustrate the potential reach of this “total religious neutrality” shadow in a series of hypothetical questions, backed by selected, additional quotations from the Supreme Court’s decision.

Generally:

1. Will there come a time when no public official can mention, be seen to publicly celebrate or endorse, or even wish Canadians a “blessed”, or simply a “happy” Christmas Day, Boxing Day, Good Friday, or Easter Monday (Christianity), as it would interfere with the state’s duty of religious neutrality? This quagmire may also extend to other major faiths, banning or hindering participation in all prayers at or regarding, and all support (conceivably one day including financial support of cultural groups that may be used for religious activities, or cultural events with a religious context), including but not limited to Yom Kippur and Hannukah (Judaism), Diwali and the Hindi, Bengali, and Tamil New Years (Hinduism), Eid-al Fitr and Eid-al-Adha (Islam), and the Chinese New Year (Buddhism)? Will all Canadians be relegated to celebrating only the non-denominational Kwanza in December, or will that, too, be lost?

“This being said, it must be recognized that the Canadian cultural landscape includes many traditional and heritage practices that are religious in nature. Although it is clear that not all of these cultural expressions are in breach of the state’s duty of neutrality, there is also no doubt that the state may not consciously make a profession of faith or act so as to adopt or favour one religious view at the expense of all others.”[72] [Emphasis added].

2. Will any adherent of any specific theistic faith be discouraged from participating in the rites and rituals of his or her own faith, just because they hold public office? It is, after all, the duty of politicians to “relate to” and otherwise “participate in” the daily lives and cultures of their constituents, to the extent able. Is engaging in a political campaign an “official duty” or “official function” of a political incumbent or aspirant?

“Where state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others, the first two criteria for discrimination mentioned above, namely that there be an exclusion, distinction or preference and that it be based on religion, are met.”[73] [Emphasis added].

3. Will this religious neutrality discourage the holders of sincere religious beliefs, from competing for or accepting public office, due to the restrictions that this would pose on their personal beliefs? The multiplicity of faiths in Canada means that not all can be accommodated during political and election season. Hence, some will be omitted and thus appear to be disfavoured, and those included might therefore appear to be favoured.

“The state, I should point out, does not have a freedom to believe or to manifest a belief; compliance with its duty of neutrality does not entail a reconciliation of rights. On the other hand, it goes without saying that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity. Although they are not entitled to use public powers to profess their beliefs, this does not affect their right to exercise this freedom on a personal basis.”[74] [Emphasis added].

4. Will we witness a banning or blue-penciling (re-writing to conform to law) of the oaths and affirmations of the myriad professional bodies that refer to God or gods, simply because these licensing bodies take their self-regulatory powers from the state, and must therefore also be religiously neutral?

5. How soon, until the very books of faith, are banned outright from public spaces, or simply excluded as the “hitherto devoid of religion” basis for taking any firm oath or making any binding affirmation in Canada’s courts and tribunals, and during the swearing-in ceremonies for public officials and lawyers?

6. How many intentional practices, incidental government services, or implicitly personal actions will be curtailed due to the fact that they may, somehow, promote or favour one of the many possible faiths?

Europe:

7. Will Canada move further along this spectrum to follow the European examples (Belgium, France, Germany, and Spain) of banning religious symbols, clothing, and practices in schools and public places? What, if any, will be the difference in treatment between a headscarf, a turban, a skull cap, prayer beads, a rosary, a kirpan,[75] and a crucifix; and who will have the final say?[76]

8. What will be the effects on internationally guaranteed religious and cultural freedoms to which a multicultural Canada has acceded by its membership in global institutions, and its ratification of global treaties and accords that touch and concern human and cultural rights?[77]

9. How – with the highest court in the land now having passed its judgement and short of taking a case outside Canada, can any Canadian Citizen or resident of sincere faith seek recourse and recompense for national and provincial violations of international law, with respect to their freedoms of religion, conscience, cultural enjoyment, and speech or expression in an “officially” multicultural Canada?

10. With the rise of new faiths (such as Kopimism),[78] can atheism somehow or someday be deemed and construed as a religion, and therefore brought under that same rubric of laws constraining the others?[79]

11. Is Canada, wittingly or unwittingly, setting itself up for intermittent and/or interminable religious conflict(s)?  Thoughts and prayers are often invoked in the case of any disaster around the world.  Will this phrase, also, soon be a relic?

CONCLUSION:

These are all hard questions to answer, today. However, as time progresses, we may see some or all of them answered in Canada’s Human Rights Tribunals, and courts of first and later review. This downhill snowball is now rolling, and gaining both speed and mass. If care is not taken, we’ll all face the choice to live (or leave) with its end-results – whether devastating, or neutral, or devastating in their neutrality.

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Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

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[1] Reading in alphabetical order, these roughly 3 (“three”) dozen mainstream faiths would include the Ahmadiyya, Amish, Anglican, Ayyavazhi, Baha’i, Baptist, Buddhist, Catholic, Confucian, Coptic, Druze, Hindu, Eastern Orthodox (itself comprising some 18 independent denominations), Ethiopian Orthodox, Evangelical, Ismaili, Jain, Jewish, Lutheran, Mennonite, Methodist, Pentecostal, Rastafarian, Seventh Day Adventist, Shia, Shinto, Sikh, Sufi, Sunni, Tao, Rastafarian, Yazidi, Zaydi, and Zoroastrian.

See Wikipedia. Eastern Orthodox Church. Online: <http://en.wikipedia.org/wiki/Eastern_Orthodox_Church>

[2] These include Aum Shinkriyo, Cargo Cults, Falun Gong, Hare Krishna, Satanism, Vodun, Wicca, and even Kopimism which I wrote about in an earlier post. See e.g. Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: < https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[3] Traditional beliefs range from ancestor worship, through the veneration of spirits and natural phenomena (popular amongst the First Americans, the Peoples of all parts of Africa and Europe, and the Peoples of Asia and the Pacific) that still prevail to this day despite significant inroads made by those above mainstream religions. Countless examples abound that include Asatru, Candomble, Druidism, Ifa, Lukumi, Macumba, Mugyo, Santeria, Shamanism, Shenism, and Famadihana (which is the ritual exhumation and reburial of the dead). Additional, “new age” faiths would include the Nation of Islam, Rajneesh Movement, Scientology, Unificationism (Moonism), and certain forms of Yoga and Transcendental Meditation.

[4] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> This was a supermajority decision of 8 (“eight”) Justices of the Supreme Court of Canada, with the ninth and last Justice concurring.

[5] Indeed, to recognize Atheism as a functioning, fellow faith flower takes away this kind of power that it has to detour around and devour others. Perhaps this is a path worthy of pursuit.

[6] Government of Quebec. Charter of Human Rights and Freedoms. R.S.Q., chapter C-12.

Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html> Relevant provisions follow.

PART I: HUMAN RIGHTS AND FREEDOMS

CHAPTER I: FUNDAMENTAL FREEDOMS AND RIGHTS.

Fundamental freedoms

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.

1975, c. 6, s. 3.

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.  1982, c. 61, s. 2.

CHAPTER I.1: RIGHT TO EQUAL RECOGNITION AND EXERCISE OF RIGHTS AND FREEDOMS

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 race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.  1975, c. 6, s. 10; 1977, c. 6, s. 1; 1978, c. 7, s. 112; 1980, c. 11, s. 34; 1982, c. 61, s. 3.

10.1. No one may harass a person on the basis of any ground mentioned in section 10.  1982, c. 61, s. 4.

11. No one may distribute, publish or publicly exhibit a notice, symbol or sign involving discrimination, or authorize anyone to do so. 1975, c. 6, s. 11.

15. No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there. 1975, c. 6, s. 15.

CHAPTER IV: ECONOMIC AND SOCIAL RIGHTS

44. Every person has a right to information to the extent provided by law. 1975, c. 6, s. 44.

CHAPTER V: SPECIAL AND INTERPRETATIVE PROVISIONS

Recourse of victim for unlawful interference.

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

Punitive damages.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.  1975, c. 6, s. 49; 1999, c. 40, s. 46.

PART II: COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE

CHAPTER III: COMPLAINTS

82. The commission may also apply to a tribunal for any appropriate measure against any person who attempts to take or takes reprisals against a person, group or organization having an interest in the handling of a case of discrimination or exploitation or having participated therein either as the victim, the complainant, a witness or otherwise.

The commission may, in particular, request the tribunal to order that, on such date as it deems fair and expedient under the circumstances, the injured person be instated in the position or dwelling he would have occupied had it not been for the contravention.  1975, c. 6, s. 82; 1989, c. 51, s. 5.

[7] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

GUARANTEE OF RIGHTS AND FREEDOMS

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

[8] Supra note 4.

[9] Supra note 5.

[10] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> at para. 9-10. Simoneau had also been joined in his complaint to the Commission by the MLQ. See Infra, note 12 herein and accompanying text.

[11] Id. The Bylaw was règlement vs-r-2008-40, city of Saguenay, November 3, 2008.

[12] Id.

[13] See Simoneau c. Tremblay, 2011 QCTDP 1, [2011] R.J.Q. 507, [2011] AZ-50722559, [2011] Q.H.R.T.J. No. 1 (QL), 2011 CarswellQue 7400 (WL Can.) Decision issued February 9, 2011. Online: <http://www.soquij.qc.ca/decisions/fr/50722559_an-1.doc> [Emphasis added]. *Original and quoted versions differ due to translation.

“[250] […] Given the findings resulting from the analysis of the religious nature of the prayer and the symbols, the Tribunal is of the view that the use of public power in order to display or convey a particular faith has the effect of imposing values and religious beliefs and practices on people who do not share them. In so doing, the City and the Mayor are favouring one religion over another, whereas under its duty of neutrality, the State should refrain from intervening such that a preference is exercised.”

“[251]     The reciting of a prayer and the exhibiting of religious symbols in the state-controlled space constituted by the meetings of the municipal council, where representatives of the people discuss questions of public interest, also have a non-trivial exclusionary effect that substantially stigmatizes people who do not share those values. As expert Baril indicated in his report and testimony, the fact that people are exposed against their will to symbols and symbolic representations, through an identity ritual such as the reciting of the prayer, makes that religious practice coercive, since the only way around it is to be physically or symbolically excluded.”

[252]      The religious content of the bylaw thus sends religious minorities and atheists the message that, in the public sphere, there is still a gap between them and the dominant religious culture conveyed by the political authorities. In Freitag, the Court of Appeal for Ontario concluded that the fact that a person must comply with the beliefs of the majority is a subtle and constant reminder of his or her difference from the majority: […]

[14] Id. [Emphasis added]. *Original and quoted versions differ due to translation.

“[210]     Moreover, as the Tribunal pointed out in Laval, it has been well established in the jurisprudence that [TRANSLATION] “the basic freedom that constitutes the freedom of religion and conscience compels the state to be neutral”. Owing to that obligation, the state authority cannot, because of its collective nature, make use of the power it exercises in order to promote the personal religious beliefs of the individuals who perform political functions, without interfering in a manner that is more than trivial or insubstantial in the right to the free exercise of religious belief or conscience.”

“[225]     For the following reasons, the Tribunal concludes that the reciting of the prayer at public Ville de Saguenay meetings and the presence of religious symbols in the rooms where the meetings are held impair Mr. Simoneau’s right to full and equal recognition of his freedom of conscience and religion without discrimination based on religion, namely, his right not to be subjected to, or forced to hold, a conviction or engage in a religious practice he does not believe in during public meetings led by people representing the political authority in the exercise of their duties.”

“[301] Due to the very nature of the freedom that the right to equality is combined with here, no accommodation would be able to actually guarantee the religious equality of the citizens. When the right to equality is combined with the State’s duty of religious neutrality, the duty to provide reasonable accommodation arises as a negative requirement that is unique in its ability to ensure, in such a context, the equality of all in the exercise of freedom of conscience and religion. Therefore, to ensure the religious equality of all citizens, regardless of their beliefs in this area, State officials gathered together for a political meeting held in a public space cannot fulfill their legal obligations other than by completely abstaining from praying and displaying religious symbols.”

[15] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), [2013] R.J.Q. 897, 363 D.L.R. (4th) 62, 76 C.H.R.R. D/430, [2013] AZ-50969282, [2013] Q.J. No. 5220 (QL), 2013 CarswellQue 7596 (WL Can.) Court of Appeal Case No.: No.: 200-09-007328-112 (150-53-000016-081). Decision issued May 27, 2013. Online: <http://www.canlii.org/en/qc/qcca/doc/2013/2013qcca936/2013qcca936.pdf>

[16] Id. at 59.

[17] Id. at 88.

[18] Id. at 94.

[19] Id. at 100.

[20] Id. at 102.

[21] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 106, 108.

[22] Id. at 115.

[23] Id. at 125.

[24] Id. at 130. See also para. 131.

[25] Id. at 152. See also Infra, note 29, 2015 SCC 16 at 116-17.

[26] Id. at 164.

[27] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 170.

[28] Id. at 132.

[29] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16.

[30] Id. at 6.

[31] Id. at 7.

[32] Id. at 12.

[33] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 35, 37.

[37] “The issue in this appeal deals primarily with the religious neutrality of the State. It is a matter of importance to the legal system over which the Tribunal does not have exclusive jurisdiction. Given the nature of the principal issue raised in this case and the consequences that its response entails, I find that there is no need to pay any particular deference to the expertise of the Tribunal. It is thus according to the standard of review of correctness that this appeal must be must be decided.” (sic) [Emphasis added].

[34] Id. at 49.

[35] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 29.

[36] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[37] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 33.

[38] Coutu v. Tribunal des droits de la personne, [1993] R.J.Q. 2793 (C.A.).

[39] Commission scolaire Marguerite-Bourgeoys v. Gallardo, 2012 QCCA 908, [2012] R.J.Q. 1001, at paras. 47-51.

[40] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 49.

[41] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47, 54-55, 60; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 23); and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at paras. 14-15.

[42] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 50.

[43] Id. at 53, 61.

[44] Id. at 57.

[45] Id. at 64.

[46] Id. at 70.

[47] Id. at 75.

[48] Ibid.

[49] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 74.

[50] Id. at 77.

[51] Id. at 78.

[52] See Supra, note 6.

[53] See Supra, note 7.

[54] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 89-90. Indeed, the Supreme Court found at paragraph 100, that neither the old prayer alone, nor the new prayer with the Bylaw, could pass as non-religious, or religious but being of minimal interference with the rights of S, as they were far too religious and far too public. Indeed, at paragraph 101, the Supreme Court further found the Bylaw’s addition of two minutes that allowed those not in favour of staying for the prayer to exit the chamber “highlights the exclusive effect of the practice.”

[101] “(…) although the wording was modified somewhat by the By-law as of 2008, the new wording changed neither the nature nor the substance of the prayer. Both wordings constituted an invocation to God, attributing benefits enjoyed by the City and its citizens to him, and asking him to guide the council’s deliberations. (…) These recitals from the preamble show that the prayer was intended as support by the City for the religion professed by individual councillors.” 2015 SCC 16, at 100.

[55] Id. at 109.

[56] Allen v. Renfrew County, 2004 CanLII 13978 (ON SC), at 27, 69 O.R. (3d) 742, [2004] O.J. No. 1231. Online: <http://www.canlii.org/en/on/onsc/doc/2004/2004canlii13978/2004canlii13978.html>

[27] “The prayer in its present form is not in substance a religious observance, coercive or otherwise and it does not impose any burden on the applicant or any restriction on his exercise of his own beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag, to participate in a Christian or other denominational form of worship. The mere mention of God in the prayer in question is not in this court’s opinion, sufficient in its effect on the applicant to interfere in any material way with his religious beliefs.” 2004 CanLII 13978, at 27.

Allen v Renfrew had itself, been preceded by a ruling striking-down council prayer by the Court of Appeal for Ontario, which stated that a “non-denominational” prayer (similar, perhaps, to the one recited in the House of Commons) might have passed the section 1 balancing test of the Charter. See e.g. Freitag v. Penetanguishene (Town), 1999 CanLII 3786 (ON CA), at 51-52, 47 OR (3d) 301; 179 DLR (4th) 150; [1999] OJ No 3524 (QL). Online: <http://www.canlii.org/en/on/onca/doc/1999/1999canlii3786/1999canlii3786.html>

[57] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 127.

[58] Id. at 133, 134.

[59] Id. at 140.

[60] Id. at 144, 143.

[61] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS, Preamble.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

[62] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 147.

[63] Id. at 148.

[64] Id. at 151-154.

[65] Id. at 160.

[66] Id. at 161.

[67] Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, 2002 SCC 18 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html?autocompleteStr=whiten%20v.%20&autocompletePos=1>

[68] de Montigny v. Brossard (Succession), [2010] 3 SCR 64, 2010 SCC 51 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2010/2010scc51/2010scc51.html?autocompleteStr=2010%20scc%2051&autocompletePos=1>

[69] Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211. Online: <http://www.canlii.org/en/ca/scc/doc/1996/1996canlii172/1996canlii172.html>

[70] Supra note 6. Quebec Charter of Human Rights and Freedoms, at section 49. R.S.Q., chapter C-12. Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html>

[71] Supra note 69. Quebec (Public Curator) v. Syndicat national, 1996 CanLII 172 (SCC), [1996] 3 SCR 211, at para. 121.

[72] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 87.

[73] Id. at 84.

[74] Id. at 119.

[75] But see contra, Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, 2006 SCC 6 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2006/2006scc6/2006scc6.html>

In that now dated case, the Supreme Court of Canada ruled that the ban by a Quebec school authority on the carrying of kirpans by non-violent adherents of the Sikh faith, would violate section 2(a) – freedom of conscience and religion, of the Canadian Charter of Rights and Freedoms. It is now questionable whether this decision will be left to stand.

[76] See generally Human Rights Watch. Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. Posted December 22, 2010, on hrw.org. Online: <http://www.hrw.org/news/2010/12/21/questions-and-answers-restrictions-religious-dress-and-symbols-europe>

[77] Ibid. Fuller treatment of potentially impacted international rights and freedoms is beyond this limited blog post.

[78] Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: <https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[79] See generally supra note 5, and accompanying text.