Legal and Social Affairs
On 14 April 2015, the Supreme Court of Canada unanimously agreed that the City of Saguenay is not permitted to open its council meetings with a prayer and that the state must remain neutral in matters of religion.
The Court held in Mouvement laïque québécois v. Saguenay (City) that the recitation of prayers before council interfered with an atheist appellant’s freedom of conscience and religion and failed to respect the state’s duty of neutrality on religious matters. This duty requires that the state abstain from favouring one religious belief over others.
The freedom of conscience and religion is protected in section 2(a) of the Canadian Charter of Rights and Freedoms. It is also protected in sections 3 and 10 of Quebec’s Charter of Human Rights and Freedoms, which was the human rights law under which the appellants brought the discrimination complaint.
Writing on behalf of the Court, Justice Clément Gascon stressed that the decision should not be viewed as “taking a stand in favour of atheism or agnosticism” over religion. Rather, he wrote that in preserving “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,” the state helps preserve every person’s “freedom and dignity”.
Case history: Quebec Court of Appeal had ruled no discrimination occurred
In 2011, the appellants made a successful complaint before Quebec’s Human Rights Tribunal concerning a prayer the mayor of Saguenay delivered at the start of public council meetings, which had been written into the city’s bylaws.
On appeal, the Quebec Court of Appeal concluded that no discrimination had taken place. It recognized the need to balance freedom of religion with the “cultural reality” of Quebec’s religious heritage. It also held that any interference with the complainant’s rights was “trivial” or “unsubstantial”.
The Supreme Court disagreed, and restored the tribunal’s decision ordering the mayor to cease reciting the prayer. It found that although the prayer was drafted to be non-denominational, it was intended to profess a theistic faith and “turned the meetings into a preferential space for people” who shared this faith. This made the appellant feel “isolated, uncomfortable and excluded”. The Court held that any law that has a religious purpose, and cannot therefore be reconciled with the state’s duty of neutrality, will be “inoperative”.
The complainant was awarded $30,000 in damages, in part due to the “intentional nature of the unlawful interference”.
Canadian governments must consider if practices breach duty of neutrality
The Court’s decision had an immediate impact on the City of Saguenay, and it will also require governments across Canada to consider whether any of their laws or practices breach the state’s duty of neutrality.
A number of city councils, including those in Calgary, Edmonton, Ottawa, Kelowna, St. John, and Lévis, are reportedly withholding their opening prayers in the wake of the Court ruling, while others are reviewing the practice.
Justice Gascon held that the state will have breached its duty of religious neutrality if the complainant demonstrates that the state’s actions “reveal an intention to profess, adopt or favour one belief to the exclusion of all others” and that they interfere with his or her freedom of conscience and religion. The court or tribunal must also be satisfied that the complainant’s beliefs are sincerely held and that any interference with their rights must be more than trivial or unsubstantial.
Nevertheless, limitations placed on a person’s rights may be justified under section 1 of the Canadian Charter and section 9.1 of the Quebec Charter, if a government can put compelling reasons for these before the court.
Canada’s religious heritage
Justice Gascon discussed the Supreme Court’s “evolving” understanding of the freedom of religion and conscience. He added that it must be interpreted in light of section 27 of the Canadian Charter, which recognizes the multicultural nature of Canada. He recognized that there are many traditional practices in Canada’s heritage that are religious in nature.
A reference to a religious faith by the state is not on its own determinative. Rather, it is the purpose and effect of the reference that may be discriminatory. The traditional element of such practices, however, cannot be used to justify promoting the participation of certain believers to the detriment of others.
In its arguments, the City had asked that the Court consider other examples of Canada’s theistic heritage, such as the prayer recited by the Speaker of the House of Commons and the reference to the supremacy of God in the preamble to the Canadian Charter.
Although Justice Gascon noted that the Court did not hear enough evidence to fully comment on these, he suggested that the House’s prayer may be subject to parliamentary privilege. He also added that the Court did not believe the Charter’s preamble was intended to grant a privileged status to theistic religious practices.
Every country has its own approach to the division of religion and the state. Many foreign courts have also had to determine how to balance respect for their religious traditions and freedom of religion in a similar context.
In 2013, for instance, the Supreme Court of the United States ruled that city councils are permitted to begin their meetings with prayer. This was partly due to historical precedent and also to avoid courts from having to act as supervisors and censors of religious speech.
In 2009, the Grand Chamber of the European Court of Human Rights upheld the Italian government’s decision to allow crucifixes in Italian public schools. It reasoned that crucifixes were essentially a passive symbol in secular schools and that there was no breach of the right to education in the European Convention on Human Rights.
In 2011, the High Court of Justice in the United Kingdom ruled that local councils could not say prayers at meetings. This decision was based on its interpretation of local governance laws, and not on constitutional arguments.
The government was, therefore, able to subsequently issue a Parliamentary Commencement Order to ensure that local councils had the legal right to say prayers. A U.K. private member’s bill explicitly granting local authorities the right to say prayers and support religious events recently received Royal Assent.
- Barnett, Laura, Freedom of Religion and Religious Symbols in the Public Sphere, Library of Parliament Publication, No. 2011-60-E, 15 January 2013.
- S. Department of State. “Canada,” Report to Congress on International Religious Freedom, 2013.
- Moon, Richard. “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 B.C. L. Rev. 497. Available to Parliamentary clients and other subscribers at: HeinOnline.
- Brooke MacKenzie, “Canada: Like A Prayer: How The Supreme Court’s Freedom Of Religion Decision In Saguenay Affects Administrative Law And The Admissibility Of Expert Evidence,” Monday Business Briefing, 20 April 2015.
- Louis-Philippe Lampron (2011). « Évitons un (autre) dérapage. Commentaire sur certaines réactions alarmistes par rapport au jugement sur la prière au conseil municipal de Saguenay » Éthique publique, 13(2).
- Nadia Boutouba et Stéphane Bernatchez (2013) « L’état et la diversité religieuse au Canada: Une possible histoire du principe de neutralité de l’état » Revue de Droit : Université de Sherbrooke, 43(numéro spécial) : 9-48.