Separation of Church and State: Mouvement laïque québécois v Saguenay (City)

The separation of church and State has long plagued Canada. The Supreme Court of Canada (“SCC”) recently revisited the scope of the duty of religious neutrality in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The SCC, in allowing the appeal, prevented the Mayor of Saguenay from reciting a prayer in council meetings. While the SCC’s decision on the substance of the case is laudable, the majority unnecessarily complicated the standard of review in administrative law.

Facts

In 2006, Mr. Simoneau and the Mouvement laïque québécois (“MLQ”), an organization advocating for secularism, filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (“Commission”) against the City of Saguenay. The complaint was founded on the recitation of a prayer at the beginning of municipal council public meetings and the presence of religious symbols in council chambers.

The first complaint was that the prayer and religious symbols in council chambers were contrary to ss. 3 and 10 of the Charter of Human Rights and Freedoms, CQLR c C-12 [Quebec Charter], which protected freedom of conscience and religion. Second, the prayer interfered in a discriminatory manner with Mr. Simoneau’s right to dignity and his right to information, contrary to ss. 4, 10, 11, 15, 44 and 82 of the Quebec Charter.

The Commission narrowed the scope of the allegation, by only considering whether the recitation of the prayer was discriminatory. The Commission, after completing its investigation, concluded that there was sufficient evidence for the complaint to be submitted to the Tribunal. During the proceedings, Saguenay passed By-law VS-R-2008-40, which stipulated the exact prayer to be recited at the beginning of each meeting.

What does State neutrality entail?

The core substantive issue in this case is as follows: how can the State fulfill its duty of religious neutrality? Justice Gagnon, at the Quebec Court of Appeal, adopted “benevolent neutrality.” Benevolent neutrality requires that the State promote openness and tolerance, while at the same time, not ignoring society’s heritage and tradition. Undeniably, this would not lead to “neutral practices” within Quebec; it would favour Catholic practice given the province’s heritage and tradition. Moreover, favouring majoritarian practices because of their established history is antithetical to discrimination analysis.

The SCC rejected the benevolent neutrality model. The SCC relied on R v Big M Drug Mart Ltd, [1985] 1 SCR 295, specifically, “[w]hat may appear good and true to the majoritarian religious group, or to the state acting at their behest, may not for religious reasons, be imposed upon citizens who take the contrary view” (337). The SCC, like the Tribunal, held that practice of reciting a prayer was inconsistent with the State’s duty of religious neutrality. The prayer was an exclusive practice, whether non-denominational or not, as it caused atheists and agnostics, like Mr. Simoneau, to feel excluded.

Inclusion of God in the Preamble

Few cases have considered the reference to God in the Charter’s preamble. The preamble of the Charter states, “[w]hereas Canada is founded upon principles that recognize the supremacy of God and the rule of law” [Emphasis added]. In their submissions, the City of Saguenay adopted the position that theism was entrenched in the Constitution via the preamble. The SCC rightly rejected this submission by holding that this was a mere “political theory” on which the Charter’s protection is based (para 147). The SCC correctly assigned no religious meaning to the preamble and denied that the “supremacy of God” should aid in the interpretation of religious freedom.

Religious Symbols

The Commission narrowed the scope of their investigation and did not consider the discriminatory effect that the religious symbols presented in the council chambers. Justice Pauzé, President of the Human Rights Tribunal, determined that the Tribunal was precluded from hearing an issue that the Commission did not investigate. Per Ménard c Rivet, [1997] RJQ 2108 (QCCA), the Tribunal is only to make findings on issues investigated by the Commission. Despite Justice Pauzé’s correct determination of the law, he erroneously decided not to follow precedent and determine the merits of this issue. The Tribunal determined that the religious symbols were discriminatory and ordered the Sacred Heart statue and the crucifix be removed.

The Court of Appeal mimicked this flawed logic. Like the Tribunal, Justice Gagnon, writing for the majority, determined that the Tribunal should not consider the merits of an issue that was not investigated by the Commission. Nonetheless, Justice Gagnon decided to rule on the issue. The Court of Appeal, with Justice Hilton dissenting on this narrow point of law, determined that the religious symbols were art, and therefore, not discriminatory.

The SCC correctly determined that this issue of religious symbols was not properly before the Tribunal, and refused to determine the issue on its merits. It remains open whether religious symbols present in council chambers amount to an infringement on freedom of conscience and religion. However, it is likely their presence will be found to be an infringement on ss. 3 and 10 of the Quebec Charter in a future case adopting the same analysis applied to the prayer.

Standard of Review: Appellate Review of Judicial Review?

Both the Quebec Court of Appeal and the SCC grappled with the standard of review to be applied to the Tribunal’s decision. Justice Abella put forth the most compelling approach: adopting a single standard of review based on administrative law in keeping with Dunsmuir v New Brunswick, [2008] 1 SCR 190 [Dunsmuir].

The Quebec Court of Appeal applied both the standard of review analysis applied to administrative decision makers and the appellate standard of review. Justice Gagnon applied the correctness standard, and later determined there was a palpable and overriding error.

Justice Gascon, writing for the majority in the SCC, correctly determined that the Tribunal is a specialized administrative decision maker and the standard of review should either be correctness or reasonableness. However, Justice Gascon than applied both standards to different aspects of the decision. The reasonableness standard applied to whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom, and the determination of whether it was discriminatory. The standard of correctness was applied to the issue of State neutrality.

Justice Abella rejected the majority’s approach of applying both standards of review in a single issue. Justice Abella, held, “[a]tomizing what is meant to be a holistic approach to determining whether discrimination has occurred, undermines an analysis that requires careful scrutiny of all of the interconnected relevant factual and legal parts” (para 172). Further, the SCC had just clarified the legal framework for determining the standard of review in Dunsmuir. Previously, the case law was inconsistent and the lower courts lacked clarity on how to determine how to review an administrative decision. The caveat the majority introduced into the Dunsmuir framework has the potential to convolute and confuse lower courts.