April 15, 2015: For years now, municipal leaders in Quebec have started council meetings with prayers, arguing that although Quebec is a secular society, the religious trappings of crucifixes, sacred heart statues and flashing red votive lights are merely the traditional backdrop of heritage, but are otherwise secular processes. The dog whistle (double langage, for Francophone readers) was a message about preserving the cultural “values” of the majority (even the non-believing majority) tied up in the bow of state neutrality and laîcité.
The Supreme Court of Canada put an end to this double standard in a strong decision released today. Mouvement laïque québécois v. Saguenay (City). The case decides that reciting prayers to start municipal Council meetings breaches the religious neutrality of the state, resulting in discriminatory interference with freedom of conscience and religion, which includes freedom from religion for atheists or agnostics.
The decision is important for two reasons. First, it helps to clarify the murky terrain between secularism , religious claims and State neutrality, using constitutional principles. Second, it shores up the status of the Quebec human rights tribunal by confirming that a degree of deference is owed to the specialized tribunal. In this regard, the case is a major course correction for the Quebec Court of Appeal which has been consistently whittling down the authority of the Quebec tribunal.
A brief overview of the facts helps to situate why official acts of the State that are imbued with religiosity violate basic human rights principles.
The city of Saguenay is a Québec municipality, and the Mayor engaged for many years in a regular practice of leading council meetings by reciting a prayer. Ho would make the sign of the cross while saying “in the name of the Father, the Son and the Holy Spirit.” The prayer ended with another sign of the cross and an ‘amen’. The background for these prayers included sacred heart statuary fitted with red electric votive lights and a crucifix.
The complainant, Mr. Simoneau, is an atheist who felt uncomfortable with these displays which he considered to be religious in nature and he filed a complaint with Quebec’s human rights commission in 2007. The official complaint was filed by the Mouvement laïque québécois [MLQ] a nonprofit organization advocating complete state secularism in Québec.
The complaint alleged a violation of Mr. Simoneau’s freedoms and rights, notably his freedom of conscience and religion, contrary to the Quebec Charter of human rights and freedoms. It was argued that the religious nature of the prayer was discriminatory and also infringed Mr. Simoneau’s right to dignity and his right to information under the Quebec Charter.
The City responded by adopting a bylaw that confirmed the traditional nature of the prayer recital, claiming the individual rights and freedoms of the municipal Councillors and specifying that non believers are “in no way of obligated to recite this prayer or attend its recitation” (Bylaw VS-R-2008-40). The text of the prayer was then set out in the bylaw which included an appeal to “Almighty God” and specifying that council sessions would open two minutes after the end of the recitation of the prayer in order to allow non-believers to return to Chamber.
Mr. Simoneau and the MLQ amended their complaint to declare the bylaw inoperative.
Decision of the Québec human rights Tribunal
The human rights Tribunal decided in 2011 that the prayer, when considered in context, was religious in nature and that it showed a preference for one religion to the detriment of others. He found that Mr. Simoneau was sincere in his beliefs and that the interference with his beliefs caused by the prayer and exhibiting of religious symbols was an interference in his rights not to be discriminated against due to conscience and religion. The interference was serious, in the sense that it was more than trivial or insubstantial. (2011 QCTDP 1).
The practice was therefore a breach of the state’s duty of neutrality, and the interference with the complainant’s beliefs was held to be discriminatory. The Tribunal also held that the attempts by the municipality to “accommodate” non-believers were not really an accommodation at all, but worsened the discrimination. The bylaw was then declared to be “inoperative and invalid”.
Decision of the Québec Court of Appeal
On appeal, the Court of Appeal overturned the Tribunal (2013). The Tribunal deserved little deference, it was decided. Gagnon J.A., writing for the court, was of the view that religious neutrality does not require the state to abstain from religious matters, but rather to carry out its duties in a manner that is consistent with the heritage and traditions of a given society and with the state’s duty to preserve history. In other words, the protection of religious freedom should be reconciled with (moderated by) the cultural realities of that society.
It is worth pausing for a moment to point out that this characterization of “neutrality” creates what religious minorities have viewed, with some reason, as an outrageous double standard when it comes to state neutrality. The debacle over the “Charter of Values” in 2013-14 was the most recent embodiment of this double standard, emphasizing Quebec “values” independently of fundamental rights and freedoms and articulating them from the perspective of the cultural identity of the majority group in Quebec with the added ballast of interculturalism.
The Court also stated that the prayers were expressing “universal values” that cannot be identified with a particular religion and that the religious paraphernalia in the Council rooms were works of art devoid of religious connotation. However, the issue of the relevance of the religious symbols was set apart from the main analysis because the Quebec human rights commission had not investigated the issue of the religious symbols and, therefore, the Court thought that it should refrain from deciding on whether those symbols affect religious freedoms or not.
Secularism, neutrality and State coercion
On religious symbols: The Supreme Court of Canada agreed that because the human rights commission had not investigated the issue of religious symbols, that it was not open to the tribunal to rule on whether the Sacred Heart statue or the crucifix were themselves discriminatory. However, the Court also held that in considering whether the prayers were discriminatory, the Tribunal was entitled to consider the context of the prayer, which included any “evidence useful and relevant” to that determination.
In other words, the actions of the municipal officials, and the presence of religious symbols form part of the context in which the prayers took place.
Prayer: . The Court decided that the prayer sponsored one religious tradition over another, which had a disparate or disadvantageous impact on the religious freedoms of those who do not share the sponsored religion. The bylaw explicitly provided for the exclusion of people who do not share the religious views implied by the prayer, and therefore worsened the situation by creating an impairment of the rights of atheists.
Section 3 of the Québec Charter protects freedom of conscience and religion, and section 10 protects the right of every person to “full and equal recognition exercise of his human rights and freedoms, without distinction, exclusion or preference.” The court also pointed out that the Canadian Charter of Rights and Freedoms sets out the principles that should be used in interpreting the Quebec Charter.
What is the content of religious freedom? The Court had to address the content of freedom of conscience and religion, drawing on previous case law and legal writing. It noted that the freedom includes not only the right to believe, but also the freedom not to believe, to demonstrate one’s non-belief and to refuse to participate in religious observances. These are longstanding principles. Neither the Quebec nor the Canadian charter imposes duties of religious neutrality expressly, but the Court noted that interpretations of freedom of conscience and religion have evolved so as to guarantee the rights of individuals and voluntary associations, while making the State an “essentially neutral intermediary” (para 71).
In response to the argument that the majority view should be given precedence, or that everyone should behave in accordance with the traditions of the majority, the court noted 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” (at paragraph 74). This statement is important because it demolishes the arguments of the interculturalists in Quebec who argue that the traditions and “values” of the majority should be the framework within which diversity is considered and negotiated.
The Court further noted that the neutrality of public space helps preserve and promote the multicultural state of Canadian society which is protected by section 27 of the Canadian Charter of Rights and Freedoms. Section 27 protects multiculturalism and it means that the duty of neutrality should be interpreted to protect the objectives of the Canadian Charter (including freedom of religion) and to enhance diversity (at paragraph 73 to 75).
This reasoning is reinforced by the pronouncement that the state cannot use its power to promote the participation of certain believers or non-believers in public life to the detriment of others (paragraph 76), implying that attempts to use the state’s power to exclude, for example, religious minorities who exhibit their faith through clothing or headgear, from working in the public service, would similarly be found to be discriminatory. The Court tactfully but clearly pointed out the irreconcilable nature of claiming state neutrality on the one hand ,and a “benevolent” approach to secularism based on a particular religious expression under the guise of cultural or historic reality or heritage on the other.
Why official prayers violate freedom of religion: The concept of freedom of religion would be emptied of meaning if official acts and legislation were permitted, in the name of freedom of religion and “tradition”, to create a state-sanctioned environment that effectively ousts the beliefs of minorities thereby compelling them, directly or indirectly, to behave or participate in public debates or spaces in a particular way, subject of course to other human rights and fundamental laws such as the Constitution and the Criminal Code. The test that appears to have been accepted by the Court is legislative or administrative action that increases the cost of practising or otherwise manifesting religious beliefs, provided that the cost or burden is not trivial or insubstantial. The same applies of course to non-religious beliefs.
The Court had no difficulty in finding that the prayer was essentially religious in nature, focusing on the explicit invocation of God, the traditional Christian language of “honour and glory” of God, and the conclusion with the word “amen”. The modified version of the prayer in the bylaw altered the wording, but not its essential nature. The change in the bylaw allowing non-believers to leave the chamber and then re-enter it once the prayer was completed accentuated the discriminatory effect of the prayer recital. The court also took into consideration the fact that councillors made the sign of the cross at the beginning and the end of the prayer.
What about historical tradition? The court held that the duty of neutrality does not require the state to abstain from celebrating or preserving its religious heritage, but noted that this excuse or justification cannot permit the state to engage in discriminatory practices for religious purposes which is what happened in the case of the City prayer.
The prayer was clearly theistic (invoking God), and therefore could not be argued to be non-religious in nature, by definition. The municipality does not have a right to manifest its faith in the context of its official functions for the simple reason that this cannot be reconciled with the State’s duty of neutrality. The appeal to tradition cannot justify such a use of public powers (see para 119). The Court was also careful to point out that when officials are no longer acting in an official capacity but in their personal capacity, they are of course free, as every other citizen, to exercise their freedom of conscience and religion.
The court recognized that absolute neutrality is impossible or nearly impossible to attain, but drew a line with regard to State practices that favour or hinder particular beliefs. (Paragraph 132). The court noted the comments made by the Mayor regarding his “religious battle” and the intentional nature of the bylaw that had exacerbated the exclusion experienced by the complainant were grounds for upholding significant compensatory and punitive damages.
Reasonable accommodation: Québec’s thorny relationship with reasonable accommodation, and the fundamental misunderstanding of what that term means, were illustrated once again by the rationale put forward by the municipality of Saguenay. There has been a tendency to see “reasonable accommodation” as any social accommodation of minorities rather than the formal legal requirement to provide a meaningful alternative to minorities in order to achieve equality and to allow the exercise of rights and freedoms in dignity. This tendency was underscored by the insistence of the municipal officials that the bylaw, which confronted the complainant with a Hobbesian choice of staying in a Council meeting that violated his beliefs on the one hand, or being excluded from the chamber and then stigmatized through the procedural mechanism of the bylaw on the other, was not “accommodation.” The court relied on jurisprudence from the Ontario Court of Appeal to underscore the unacceptable nature of practices that make minorities feel intimidated and uncomfortable at municipal council meetings or that compel unwilling citizens to engage in religious proceedings or undergo the consequences of exclusion (paragraph 125).
The Quebec Human Rights Tribunal: Deserving of deference?
What at first blush may appear to be a technical or administrative issue of interest only to lawyers, the question of the status of the Tribunal has important implications for access to justice for people seeking a remedy for human rights violations.
The Tribunal is a creature of statute, meaning that it was created by legislation, and like most (but not all) human rights tribunals in Canada, it receives its cases from the human rights commission, which is a separate body. The commission receives, processes and screens complaints, sending them forward for decision-making at the Tribunal depending on the results of a prior investigation. In 1997, the Québec Court of Appeal decided in a case called Ménard v. Rivet, that only the Commission is authorized to submit an application to the Tribunal, and that if the complainant submits his or her own application to the tribunal (which is permitted in limited circumstances where the commission has decided that there has been discrimination but, for one reason or another, does not wish to carry the case itself) the scope of the remedy the complainant is entitled to ask for is limited by the scope of the work done beforehand by the commission. As noted above, because the commission has limited its investigation to whether the prayer was discriminatory and specifically excluded the investigation of religious symbols, the Supreme Court of Canada held that the tribunal should not have ruled on the religious symbols and therefore the reviewing courts could not do so either.
The Quebec Court of Appeal was described as having “rashly” intervened in disturbing the Tribunal’s finding which was owed a degree of deference as a specialized tribunal. The finding that the prayer was discriminatory was a reasonable one, and should not have been interfered with.
The Court’s decision is a welcome response to the steady erosion of the Quebec Human Rights Tribunal’s status, bringing Quebec jurisprudence more closely in line with administrative law in the rest of Canada.
Most important, the decision is a rational and restrained response to a blatantly religious practice by state officials that was being shielded by appeals to national heritage and tradition that have become so common in Quebec.
It should be remembered that the Court’s decision is not a support for those who would use state power to introduce restrictions on individual rights and freedoms: indeed, it stands for the contrary position. Municipal officials cannot transform their personal religious freedoms into a State-sanctioned sword against citizens, thereby obliterating individual rights.