Appeal Watch: Religiosity in Government to be Deliberated by SCC in MLQ v City of Saguenay

Over the past couple of decades, there have been calls to remove God from Canada’s national anthem, ban the wearing of religious symbols by public servants in Quebec, and abolish the recitation of the Lord’s Prayer (Freitag v Penetanguishene (Town) (1999), 47 OR (3d) 301 [Freitag]) during town council meetings in Ontario. The Bouchard-Taylor Commission on reasonable accommodation in Quebec recommended that municipal councils abandon the practice of reciting prayers in their town halls. However, municipal politicians in Ontario and Quebec continue to commence their meetings with a “non-denominational” prayer, modeled after the prayer which begins each sitting of the House of Commons. In Quebec, the practice was formally objected to by an atheist resident of Saguenay, Mr. Alain Simoneau.

Mr. Simoneau brought an application before the Quebec human rights tribunal, Tribunal des droits de la personne du Québec (“QBTDP”), against the City of Saguenay and its mayor, Mr. Jean Tremblay. Mr. Simoneau was joined in the action by Mouvement laïque québécois (“MLQ”), a non-profit organization whose goal is to promote the secularism of the Quebec state. The Tribunal ruled that the utterance of the prayer and the display of religious symbols during public council meetings unjustifiably violated Mr. Simoneau’s freedom of conscience and religion as an atheist.

The Tribunal’s decision was overturned by the Quebec Court of Appeal (“QBCA”), and on January 16, 2014, the Supreme Court of Canada agreed to hear the appeal of Mouvement laïque québécois v City of Saguenay, 2013 QCCA 936.

Factual Context

Before the opening of each town hall meeting, the Mayor of Saguenay recites a 20-second prayer, accompanied by the signing of the cross with his hands and the words “in the name of the Father, the Son and the Holy Spirit.” The prayer reads:

Almighty God, we thank You for the many favours that You have granted Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as members of the municipal council and help us to be well aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding that will enable us to preserve the advantages that our city enjoys, so that everyone can benefit from them and we can make wise decisions. Amen. [English translation]

During the recitation of the prayer, municipal staff and audience members may choose to sit, rise, or leave the room altogether and return during the two-minute period between the end of the prayer and the commencement of formal business.

When Saguenay’s municipal council meetings are held in the Chicoutimi town hall, a Sacred Heart statue with a red electric votive light is present at the mayor’s right-hand side: approximately 2 feet tall by 1 foot wide and 12 inches thick, more than 9 feet above the floor. When the meetings are held in the neighbouring La Baie town hall, a crucifix hangs on the side wall: 28 inches tall by 13 inches wide and 5 inches thick.

When questioned by journalists about Mr. Simoneau’s formal complaints about the recitation of the prayer and the presence of the aforementioned religious symbols in Saguenay’s town halls, Mayor Tremblay said to the media:

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. […] it is the most noble fight of my entire life. [English translation]

Mayor Tremblay repeated these remarks before the Tribunal, and stood by his decision to deny Mr. Simoneau’s requests to discontinue the practices.

QBTDP Ruling

The Tribunal ruled that the prayer contained words which appealed to a monotheistic deity. Saguenay’s first expert, Dr. Solange Lefebvre of the Université de Montréal, testified that the wording of the prayer is inconsequential given that each person draws from the prayer what he or she wishes. Saguenay’s second expert, Dr. Gilles Bibeau also of the Université de Montréal, testified that the objective of the prayer is merely to place the councillors within a non-religious ethical framework. The expert called upon by Mr. Simoneau, Mr. Daniel Baril, testified that the prayer must be given the meaning lent to it by the people involved; because Mayor Tremblay imbued the words with religious meaning, it should be considered a religious prayer.

The QBTDP accepted Mr. Baril’s evidence, and found that in light of the Mayor and other councillors making physical gestures that linked the “non-denominational” prayer to the religious rituals of Catholicism, its religious nature could not be denied.

The Tribunal also ruled that the Sacred Heart statue and the crucifix served to enhance the religious nature of the area where the prayer is recited. Taken together, the City of Saguenay and the mayor overtly demonstrate favouritism towards one religion over all others – despite the state’s duty to refrain from exercising a religious preference. For the Tribunal, the utterance of the prayer and the exhibiting of religious symbols in the state-controlled space stigmatized the citizens who do not share those values, in a manner that is more than trivial or insubstantial.

QBCA Ruling

The Quebec Court of Appeal focused heavily on the meaning of the state’s duty of religious neutrality. All three appellate justices found that although there must be a clear separation of church and state, this does not prohibit the government from acknowledging the various sources of Canada’s historical heritage – even if they are religious in nature (para 106). Given that the preamble of the Canadian Charter of Rights and Freedoms itself recognizes the “supremacy of God,” the Canadian national anthem appeals to God’s protection, and the Quebec flag is adorned with a white cross, “complete secularism is not part of the fundamental protections enumerated in the [Quebec] Charter nor does this idea underlie the negative form of freedom of religion” (para 79).

The QBCA favoured the evidence given by Saguenay’s two experts, Dr. Lefebvre and Dr. Bibeau, over the evidence of Mr. Baril. Although the QBTDP preferred the evidence of the latter, the appellate court found that given his role as a founder and vice-president of the co-plaintiff MLQ, Mr. Baril did not meet the requirements of expert objectivity and impartiality.

In accepting the expert opinions of the two Université de Montréal professors, the QBCA held that “the values expressed by the Saguenay prayer are universal and cannot be identified with any particular religion … this prayer is consistent with modern theistic doctrine” (para 88). Moreover, the QBCA followed the judgement of Hackland J.S.C. in Allen v Renfrew (County) (2004), 69 OR (3d) 742 [Allen], which dealt with an atheist’s objections to a similar non-denominational, albeit monotheistic, opening prayer in an Ontario municipality:

The current prayer is broadly inclusive and is non denominational, even though the reference to God is not consistent with the beliefs of some minority groups. In a pluralistic society religious, moral or cultural values put forward in a public governmental context cannot always be expected to meet with universal acceptance (para 92, quoting para 19 of Allen).

The majority of the QBCA also held that the Sacred Heart statue and the crucifix were, “for a significant portion of the population,” deprived of their religious connotation and merely symbolic of Quebec’s historical heritage (para 125). The dissenting judge, Hilton J.A., held that the QBCA should refrain from addressing the issue of the religious symbols, as that issue was unnecessary to resolve the appeal – the QBTDP only had jurisdiction to resolve the issue of the prayer (para 116).

Commentary

Given the QBCA’s significant statements about the place of religion in government, it is unsurprising that the Supreme Court of Canada granted leave to appeal in this case. With the current political climate in Quebec – that of secularist politics and the Parti Québécois’ proposed Charter of Values – a definitive ruling by the SCC on the separation of church and state would be a welcome addition to the jurisprudence on how to best navigate multiculturalism in the 21st century. Pertinent to that debate, the QBCA held in obiter that the Mount Royal cross in Montreal (which would be exempt under the PQ’s proposed secularist purge of government) is one of many “historical manifestations of the religious dimension of Quebec society, which, when viewed with proper perspective, cannot have the effect of undermining the neutrality of the various branches of the State” (paras 103-104).

The QBTDP held, at paragraphs 289-292, that the appeal to historical tradition relied upon by the City of Saguenay could not justify the government imposing religious values on non-believers through its prayer recitation and exhibition of the crucifix and Sacred Heart statue. At paragraphs 76-78 of its decision, the QBCA also held that “benevolent neutrality” should be the overarching principle in this case; state neutrality is assured when the state neither favours nor hinders any particular religious belief and shows respect for all postures towards religion, including those having no religious beliefs whatsoever. Moreover, the QBCA found that because Quebec does not have a charter of secularism,

[W]e must stick to the liberal rule that a religiously neutral State essentially means that no religious view is imposed on its citizens and that its government action, in all its forms, remains truly free from any influence of this kind (para 64).

In light of the above, perhaps the SCC can convince this author that Saguenay’s monotheistic prayer, along with the presence of a blessed crucifix and a Sacred Heart statue in council chambers, does not serve as a “subtle and constant reminder” (para 39) of Mr. Simoneau’s different non-religious belief from that of the powerful majority, in violation of his freedom of conscience and religion.