The Supreme Court of Canada has ruled that a bi-law setting out and regulating prayer at the outset of city council meetings in Saguenay Quebec violates guarantees of freedom of religion. Like in Big M Drug Mart, the Court saw through the weak protests that the purpose of the by-law was to “ensure decorum and highlight the importance of the work of the councillors”. The purpose of the by-law was to regulate a prayer. The prayer was monotheistic, and, arguably, Catholic. It excluded persons of inconsistent or no religious beliefs and literally had them wait outside.
Before I get into the legal details, I want to talk about what this case means and doesn’t mean. It doesn’t mean people can no longer pray. People, even city Councillors, can still pray. They can pray for hours and days at a time. They can pray at work, at school, they can have whatever content they like in their prayers.
What this case prevents, is government bodies taking a side on religious issues. City Councillors and other government officials cannot pray in their official capacity. This case affirms that government in Canada is to be neutral on issues of religion. Not anti-religious, but neutral. It is not to get involved one way or another on religious issues. I think this is another way of saying that government in Canada is to be secular.
There were a number of factors that made this case ideal as a test case for secular activists. Firstly, because the city of Saguenay had amalgamated three cities in 2002, and the prayer was introduced to the new Council then, there was little hope of an argument that the prayer was a historic or traditional practice rather than a religious one.
There was no prayer by-law until 2008, following a complaint by atheist Alain Simoneau. At that time the Council. Before the complaint the prayer read:
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.
Following his complaint, a by-law was introduced and the prayer was changed to:
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.
The by-law allows for time for people who do not want to participate in the prayer to leave.
The Case also featured a mayor who was not shy in characterizing this case a religious crusade.
The case was brought by Alain Simoneau and the “Movement laique quebecois” to the Quebec human rights commission who accepted that it merited a hearing before the human rights tribunal. There was a challenge to the by-law and the presence of some religious symbols. (There were jurisdictional issues with whether the presence of religious symbols could be litigated, ultimately, no.)
The Tribunal upheld the complaint and ordered compensatory and punitive damages to the complainants in the amount of $30,000. It heard expert testimony from a number of witnesses on issues of secularism and governance.
Cases of the Tribunal may be judicially reviewed by directly to the Quebec Court of Appeal, which quashed the Tribunal’s decision. Courts have limited rights interfere with the decisions of administrative tribunals such as human rights tribunals. Even if they disagree with the decision, they may defer to the decision as long as it is reasonable, but on some issues the reviewing court will require the tribunal to be correct. The standard of review will accordingly be very important. The Court of Appeal held the Tribunal in this case to a standard of correctness.
The Court of Appeal found that the Tribunal had improperly accepted the evidence of an expert who was a founding member of the Mouvement laïque québécois. It found this person to be biased and preferred the City’s experts.
The Supreme Court of Canada found the Court of Appeal to be wrong on just about everything. It held the proper standard of review was one of reasonableness, though I think it is clear from the reasons of Justice Gascon, that the majority thinks the Tribunal got it mostly correct. The decision was unanimous, with Justice Abella giving separate reasons on the standard of review.
What the Supreme Court Held – Canada’s Government is to be Neutral on Religious Issues
For me the most important issue was: what does it meant for a Government to be “neutral” on religion. This is where the expert testimony came in. Evidence was given with respect to various forms of secularism in government.
The City argued that secular government is not neutral since it bans and excludes religious speech, thus favouring the atheist perspective.
Thankfully, the Supreme Court disagreed:
Contrary to the respondents’ argument, abstaining does not amount to taking a stand in favour of atheism or agnosticism. The difference, which, although subtle, is important, can be illustrated easily. 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.
In short, there is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. No such inference can be drawn from the state’s silence. In this regard, I will say that the benevolent neutrality to which the Court of Appeal referred is not really compatible with the concept of true neutrality. As understood by that court, neutrality would in the instant case require tolerance for the state’s profession of a clearly identified religious belief on the basis of tolerance for its history and culture. I do not believe that is the sense of true state neutrality with respect to freedom of conscience and religion.
This is quite important as, recently, there seems to be a push to eliminate any limits on religious practice by government officials acting in an official capacity. (This view was recently advanced by Iain Benson in a debate with Leslie Rosenblood who provided an excellent rejoinder, in line with Justice Gagnon’s reasons.)
Separation of Church and State
I was a little confused by Justice Gagnon’s statements that,
True neutrality is concerned not with a strict separation of church and state on questions related to religious thought.
The purpose of neutrality is instead to ensure that the state is, and appears to be, open to all points of view regardless of their spiritual basis. Far from requiring separation, true neutrality requires that the state neither favour nor hinder any religion, and that it abstain from taking any position on this subject.
I suppose he wants to say that Canada’s government is truly neutral, though it may not have strict separation of church and state. I just do not see how you can have one Christian denomination having publicly funded schools and say this is not favouring one religion.
Gagnon tries to distinguish the Renfrew decision which upheld a prayer as non-denominational. He doesn’t really succeed, he says the prayer in Renfrew was found to be non-religious, but it was almost exactly the same, as the Saguenay prayer, which was modeled after it,
Almighty God, we give thanks for the great blessings which have been bestowed on Canada and its citizens, including the gifts of freedom, opportunity, and peace that we enjoy. Guide us in our deliberations as [County Councillors], and strengthen us in our awareness of our duties and responsibilities. Grant us wisdom, knowledge, and understanding to preserve the blessings of this country for the benefit of all and to make good laws and wise decisions. Amen.
Basically, the Ontario Court of Justice found this prayer to be non-religious, the Quebec Tribunal found the opposite, and the Supreme Court is saying the Tribunal was reasonable. We do not know whether the Supreme Court thinks it really is religious, but from the full context of the decision, it would seem that Gascon thinks the Tribunal got it right. (The fact that punitive damages were upheld screams this.)
I think the larger context played a significant role here. The mayor’s description of this case as essentially his jihad, likely influenced the Court’s view that this kind of thing should be stopped:
I’m in this battle because I worship Christ.
When I get to the hereafter, I’m going to be able to be a little proud. I’ll be able to say to Him: “I fought for You; I even went to trial for You”. There’s no better argument. It’s extraordinary.
I’m in this fight because I worship Christ. I want to go to heaven and it is the most noble fight of my entire life.
If you are going to write that this prayer is to “to ensure decorum and highlight the importance of the work of the councillors”, don’t go around calling it a fight for Christ.
A great and overdue ruling!