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Lingering questions after ruling

Thursday, April 30, 2015 @ 8:00 PM | By Cristin Schmitz

The Supreme Court’s judgment banning official prayers at a Quebec municipal council’s public meetings has fleshed out the concept of state “religious neutrality” but questions remain, counsel say.

The top court’s April 15 ruling unanimously overturned the Quebec Court of Appeal and restored most aspects of a decision of a Quebec Human Rights Tribunal. The tribunal ruled in 2011 that the city of Saguenay and its mayor, Jean Tremblay, violated the religious freedom of Alain Simoneau, an atheist, by conducting public prayers before each council meeting.

Tremblay and the other councilors would stand, make the sign of the cross, and intone “In the name of the Father, Son and Holy Spirit” before and after reciting a prayer. The tribunal found this made Simoneau feel isolated, uncomfortable and excluded.

The Supreme Court’s judgment, in Mouvement laïque québécois v. Saguenay (City) [2015] S.C.J. No. 16, affirms the tribunal’s order that city councillors and staff must cease public praying.

At press time, other municipal councils were also implementing the court’s edict, although some councillors complained, or said they would keep reciting prayers before meetings start, such as Oshawa, Ont., mayor John Henry.

The Supreme Court left for another day the vexing issue of the constitutionality of religious symbols in public spaces — even though Simoneau and his co-appellant, Mouvement laïque québécois, successfully persuaded the tribunal to order the city to remove from its chambers a Sacred Heart statue and a crucifix.

The top court said the tribunal did not have jurisdiction to order any religious symbols to be removed since Quebec’s human rights commission did not supply any evidence on the issue.

The Supreme Court affirmed the tribunal’s judgment requiring the defendants to pay Simoneau $30,000 in compensatory and punitive damages under Quebec’s Charter of human rights and freedoms.

The city of Saguenay’s prayer practices and related bylaw “are incompatible with the state’s duty of religious neutrality,” Justice Clément Gascon held in his first written judgment since being elevated from the Quebec Court of Appeal last June.

“The prayer creates a distinction, exclusion and preference based on religion that has the effect of impairing Mr. Simoneau’s right to full and equal exercise of his freedom of conscience and religion,” Justice Gascon said.

He explained that the purpose of the state’s “duty of religious neutrality” is to “ensure that the state is, and appears to be, open to all points of view regardless of their spiritual basis…True neutrality requires that the state neither favour nor hinder any religion, and that it abstain from taking any position on this subject.”

He held that religious neutrality is breached if state actions “reveal an intention to profess, adopt or favour one belief to the exclusion of all others, and if the practice at issue interferes with the freedom of conscience and religion of one or more individuals.”

Justice Gascon said the Quebec Court of Appeal should not have substituted its own view that the prayer in question was non-denominational and fundamentally inclusive, given that the tribunal’s findings and conclusion on the religious and discriminatory nature of the bylaw and prayers were reasonable.

The Supreme Court’s decision defines clearly, for the first time, the obligation of the state in respect of religious matters, said the appellants’ counsel, Luc Alarie of Montreal’s Alarie Legault. It is “important for its definition of the state’s neutrality and its obligations to its citizens,” he said.

Cara Zwibel of the intervener Canadian Civil Liberties Association told The Lawyers Weekly her group was pleased with the case’s outcome.

“I think it probably should have been obvious that a clearly religious prayer at the outset of council meeting — a public government meeting — is outside the bounds of our constitutionally protected rights,” she said.

Zwibel suggested moments of silence, or solemnizations by different invited groups before public council meetings, “might be OK. But certainly the same kind of religious prayer repeated each week should be off the table at this point.”

Counsel for the intervener Evangelical Fellowship of Canada, Albertos Polizogopoulos, of Ottawa’s Vincent Dagenais Gibson, said the decision does not ban prayers before council meetings.

“It is up to city councils to decide if they want to have some form of religious observance and, if so, to ensure that they are not sectarian but rather are respectful of the religious diversity of the communities they serve,” he explained by e-mail. The decision “requires that the councils should not promote or favour one religion over others.”

Polizogopoulos said the EFC intervened because it was concerned about the possible implications of the decision on other forms of religious observance or practice that involve governments or government officials performing their functions. These include the wearing of religious symbols, prayer at such events as Remembrance Day ceremonies, and the ability of religious organizations to hold religious services in public buildings such as libraries or schools, or in public places such as parks.

“The EFC wanted to ensure the public expression of religion was not hindered,” Polizogopoulos said. “In fact, the decision affirms the importance of religious expression and the need for governments to treat religions with respect.”

He said the decision states what is incompatible with state neutrality, but doesn’t propound a test for what is consistent with state neutrality.

“The decision may have left us with more questions than answers, and so the concept of state neutrality will need to be expanded on, and a formal test will need to be developed,” he said.

Tim Dickson of Vancouver’s Farris, Vaughan, Wills & Murphy, counsel for the intervener Canadian Secular Alliance, said his client sees the judgment as a principled and important advancement for freedom of religion.

“The court held the duty [of state religious neutrality] requires government to abstain on questions relating to religion, and [the state] may not promote nor hinder any particular belief, including under the guise of preserving cultural or historical heritage,” Dickson said by e-mail.

“I would say that the key point in the case is that government officials must, when acting in their official capacities, abstain from aligning themselves with any particular position on religious matters, including a broad position of theism or atheism.”

In Dickson’s view, municipalities can no longer open their council meetings with prayers. He acknowledged Parliament and some provincial legislatures also open with prayers.

“There is a question as to whether they are protected by privilege,” Dickson said. “But I expect they will face substantial pressure — if not litigation — to abandon the prayers.”

He noted some groups might try to use the notion of state neutrality, as developed by the court, to challenge the charitable tax exemption for religious organizations, or to seek to open up such exemptions to secular groups that serve similar functions to religious organizations.

Zwibel said the Supreme Court’s judgment doesn’t really depart from what it has said in the past about state neutrality, although the way it frames the issues is significant.

She said the court has also made comments “that will be relevant if, for example, Quebec decides to reintroduce some version of the Charter of Values” which proposed to ban public employees from wearing at work religious garb, or other overt religious symbols.

“The decision does draw a distinction between the state acting as state, and individual representatives of the state expressing their own personal beliefs,” Zwibel said.