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Amen: The Supreme Court of Canada’s Judgment in Mouvement laïque québécois v. Saguenay (City)

Léonid Sirota, JSD Candidate, NYU School of Law; Lecturer, Civil Law Section, University of Ottawa Faculty of Law

One week ago, on April 15, 2015, the Supreme Court of Canada delivered its decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, holding that the respondent city’s practice of starting municipal council meetings with a prayer was contrary to its duty of neutrality and amounted to religious discrimination under Québec’s Charter of Human Rights and Freedoms (usually referred to as the Québec Charter). This decision is important in itself (indeed, it is already having an effect across Canada, with cities such as Ottawa and Calgary reconsidering and, in some cases, dropping their own prayers), but it will also have implications for other religious controversies that have affected Canada in the last few years. It is also worth contrasting with the municipal prayer decision of the Supreme Court of the United States, Town of Greece v. Galloway, 572 U.S. __ (2014), delivered just under a year ago.

The Saguenay decision originated in a complaint by an atheist citizen against the City of Saguenay and its mayor, Jean Tremblay, who led the municipal council in an overtly Christian prayer at the beginning of each of its meetings. Lest his message be lost on any witness, Mr. Tremblay accompanied his prayer with the sign of the cross. After the complaint was filed, the municipal council enacted a by-law which provided for a more ecumenical prayer, similar to the one used in the Canadian House of Commons. The mayor’s gestures, however, continued as before.

The City tried to justify its prayer by appealing to tradition, to Québec’s cultural landscape and heritage, and to the reference to the “supremacy of God” in the preamble of the Canadian Charter of Rights and Freedoms. Abandoning the prayer would mean giving in to “radical liberalism” or, as the interveners supporting the City argued, to a takeover of the public space by atheists. The Court, however, did not agree.

In a judgment by its second-newest member, Justice Gascon, the Supreme Court held that public authorities are bound by a duty of religious neutrality. Departures from neutrality whereby the state endorses or sponsors one religious tradition to the detriment of others amount to discrimination on the basis of religion. The state may neither identify with a religion, or with religion generally (as opposed to non-belief), nor “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.” [76] Tradition and heritage cannot serve as an excuse for practices inconsistent with the duty of neutrality ― although not every practice with a religious pedigree will be so inconsistent. Intent is key here.

There is little question, for the Supreme Court, about the religious significance of the prayer. (Needless to say, Mr. Tremblay’s behaviour did not help the City make the case that the prayer was not really a religious practice. Remarkably, however, the Québec Court of Appeal had reached just that conclusion.) The fact that the prayer is ecumenical does not matter, because it still favours religion over atheism, and sends an exclusionary message to the adherents of the latter. Far from mitigating this message, the by-law’s provision allowing people to leave the room during the prayer only reinforces it. And as for the reference to God in the Canadian Charter’s preamble, it cannot serve to limit the scope of the Charter’s religious freedom guarantee.

Formally, Saguenay was based on the Québec Charter, and thus not binding elsewhere in Canada. In reality, however, the Court has always interpreted the overlapping rights guarantees of two Charters identically, so that Saguenay sends an unambiguous message to municipalities and other public authorities (except legislatures, whose proceedings, probably including prayer, are protected by Parliamentary privilege). But it sends a broader message too, this one perhaps mostly directed at Québec, where the issue of religion in the public space has aroused the most controversy in recent years. During its short term in office, from September 2012 to April 2014, the separatist Parti québécois tried to enact a “Charter of values” that would, in the name of secularism and state neutrality, have prohibited all public employees (not only civil servants, but also school teachers, day care workers, doctors and nurses, and even hospital janitors) from wearing “ostentatious” religious symbols ― notably, the Islamic headscarf. More recently, a Québec judge denied a Muslim woman an opportunity to be heard unless she would take of her headscarf, claiming that the courtroom head to be a secular place.

The Supreme Court’s reasons in Saguenay strongly suggest that it would not have countenanced these attempts to make individuals bear the weight of state secularism and neutrality. The duty of neutrality, the Court made clear, is incumbent on public institutions, not on those citizens who find themselves in the public space. On the contrary, one aspect of neutrality, indeed the very reason it is so important, is the state’s obligation to welcome every individual in the public sphere, regardless of his or her religious commitments. It is the use of the state’s power to promote a religious agenda that is proscribed, not the “personal” manifestation of belief. To be sure, there never was much doubt that the “Charter of Values” project was always unconstitutional. But there is even less now.

In addition to being very significant for Canadian law, the Saguenay decision is interesting to compare with that of the Supreme Court of the United States in Town of Greece. The facts of the two cases are somewhat different in that the town of Greece invited outside chaplains of various denominations to lead its prayers, instead of having a municipal official do this. Nonetheless, the differences in reasoning between the two decisions are telling. Both the majority and the dissent in Town of Greece gave a lot of importance to the longstanding tradition of prayer in American legislatures. By contrast, the Saguenay court specifically rejected tradition as a justification for departures from the state’s duty of neutrality. For the Supreme Court of the United States, the state does not discriminate if all religious sects have access to the platform it provides. For its Canadian counterpart, the state is only neutral if it aligns itself with no religious view.

The decision in Saguenay does not answer all conceivable questions about the role of religion and of religious heritage in the public sphere in Canada. It suggests that some manifestations of the heritage will not contravene the state’s duty of neutrality, but does not quite say which ones. In particular, it does not address the question of the display of religious symbols in public buildings. Nevertheless, it sets out a fairly clear, and a distinctly Canadian, approach to the separation of church and state ― one that seeks to restrain the government and thereby to welcome the citizens in their diversity. This Canadian will say ‘amen’ to that.

Suggested Citation: Léonid Sirota, Amen: The Supreme Court of Canada’s Judgment in Mouvement laïque québécois v. Saguenay (City), Int’l J. Const. L. Blog, Apr. 22, 2015, at: http://www.iconnectblog.com/2015/04/amen-the-supreme-court-of-canadas-judgment-in-mouvement-laique-quebecois-v-saguenay-city

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Published on April 22, 2015
Author:          Filed under: Developments, New Voices
 

2 Responses

  1. Noura Karazivan

    Dear Léonid,
    I would like to comment on the interpretation you make of the impact of the Ville de Saguenay decision on a potential ban of ostentatious religious symbols among public servants. I (unfortunately) don’t think the decision is that clear on the right of those citizens (or non-citizens) who find themselves working for the government to wear religious signs. I actually think the decision may in fact provide ammunitions to the supporters of a ban on religious signs among officials in a position of authority.
    You write: “The duty of neutrality, the Court made clear, is incumbent on public institutions, not on those citizens who find themselves in the public space. On the contrary, one aspect of neutrality, indeed the very reason it is so important, is the state’s obligation to welcome every individual in the public sphere, regardless of his or her religious commitments. It is the use of the state’s power to promote a religious agenda that is proscribed, not the “personal” manifestation of belief. To be sure, there never was much doubt that the “Charter of Values” project was always unconstitutional. But there is even less now.”
    I agree with the middle part of this paragraph, although after my reading of the decision, it does not appear clear to me that the state’s obligation to welcome in the public sphere any individual regardless of his religious commitments entails an obligation to allow this individual to wear religious signs.
    It is true that the Court says at par. 74 that neutrality is not required of individuals but of the state and its institutions. Note however that it cites R. v. N.S. in support of this statement. We know that R. v. N.S. was about a Muslim woman wishing to testify in Court with her niqab, thus receiving a public service, not one providing such service.
    The case of state officials providing a public service is specifically discussed at paras 84 and 119. At para 84, the Court writes: “Obviously, the state itself cannot engage in a religious practice, so the practice would be one engaged in by one or more state officials, who would have to be acting in the performance of their functions. 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 […] are met.”
    At para 119, the Court writes: “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.”
    I draw three sets of conclusions from these statements:
    1. A state official may profess his religion on a personal basis;
    2. A state official may not use public powers to profess, adopt or favour his beliefs;
    3. A state official may not profess, adopt or favor his beliefs (and exclude others) while he is exercising his functions or acting in an official capacity.
    It thus seems to me that the space clearly left for a state official to “profess, adopt or favour” his religion is where he is not acting in an official capacity, or within the performance of his functions, but rather on a personal basis.
    So, if a state official, say a policeman or a provincially-appointed judge, cannot “profess, adopt or favour” his beliefs while he is exercising his functions or acting in an official capacity, I begin to wonder when can he.
    Part of the answer may come with an inquiry on what it means, precisely, to exclude all others. Is a policeman wearing a religious sign “excluding all other” religions? But since future freedom of religion claims may not necessarily be accompanied by discrimination allegations (i.e. in the context of a constitutional challenge to future provincial legislation banning religious signs for government officials), I think a more promising avenue is to start discussing what it means, for a public official, to profess his religion while not acting in an official capacity.

    • Thank you Noura,

      Regarding N.S., I doubt that it’s accurate to describe a witness in court as “receiving a service” from the state, which makes me wonder whether that dichotomy between giving and receiving is even useful. Individuals enter the public sphere, or the state sphere, in various capacities, for various purposes, and I think that it is a virtue of the Court’s judgment that it doesn’t distinguish between them. (If a witness is receiving a service… what about a juror?)

      Note also that in that same par. 74, the Court goes on to say that “[t]he neutrality of the public space … helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27 of the Canadian Charter. Section 27 requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter, but also with a view to promoting and enhancing diversity” ― and cites R. v. S.(R.D.), which was about a judge’s reliance on knowledge associated with her racial background.

      Then, at par. 76, the Court adds that “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.” Public life, it seems to me, is a very different thing from merely “receiving” services from the state, or at any rate a much broader concept.

      So it seems to me that the difference between a person, including of course an official, wearing a garment that merely reflects his or her belief held in a personal capacity ― much as a garment might reflect one’s gender or even one’s cultural background ― and that same official aligning himself with a belief in the exercise of his or her functions is pretty clear, though of course the Bernard Drainvilles in our midst would deny it. As I read the Court’s decision, it would have made this difference too. But perhaps this is wishful thinking on my part.

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