Mouvement laïque québécois v. Saguenay (City)

Mouvement laïque québécois v. Saguenay (City)
Collection
Supreme Court Judgments
Date
2015-04-15
Neutral citation
2015 SCC 16
Report
[2015] 2 SCR 3
Case number
35496
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Quebec
Subjects
Administrative law
Notes
SCC Case Information: 35496
Decision Content
SUPREME COURT OF CANADA
Citation: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3
Date: 20150415
Docket: 35496
Between:
Mouvement laïque québécois and Alain Simoneau
Appellants
and
City of Saguenay and Jean Tremblay
Respondents
- and -
Human Rights Tribunal, Evangelical Fellowship of Canada,
Catholic Civil Rights League, Faith and Freedom Alliance,
Association des parents catholiques du Québec,
Canadian Secular Alliance and Canadian Civil Liberties Association
Interveners
Official English Translation: Reasons of Gascon J.
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 164)
Reasons Concurring in Part:
(paras. 165 to 173)
Gascon J. (McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)
Abella J.
Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3
Mouvement laïque québécois and
Alain Simoneau Appellants
v.
City of Saguenay and
Jean Tremblay Respondents
and
Human Rights Tribunal,
Evangelical Fellowship of Canada,
Catholic Civil Rights League,
Faith and Freedom Alliance,
Association des parents catholiques du Québec,
Canadian Secular Alliance and
Canadian Civil Liberties Association Interveners
Indexed as: Mouvement laïque québécois v. Saguenay (City)
2015 SCC 16
File No.: 35496.
2014: October 14; 2015: April 15.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for quebec
Human rights — Freedom of conscience and religion — Right to equality — Discriminatory practices — Principle of religious neutrality of state — Whether practice of members of municipal council that is regulated by by-law and that consists of reciting prayer at start of each meeting of council is in breach of principle of religious neutrality of state and results in discriminatory interference with freedom of conscience and religion — If so, whether remedies granted by Human Rights Tribunal appropriate — Charter of human rights and freedoms, CQLR, c. C-12, ss. 3, 10.
Administrative law — Appeals — Standard of review — Specialized administrative tribunal — Applicable standard of review on statutory appeal from final decision of Quebec Human Rights Tribunal — Whether decision subject to standards of review applicable to judicial review proceeding, or to appellate standards — Whether Court of Appeal erred in applying correctness standard to all Tribunal’s conclusions, except for one with respect to expert evidence, for which it referred to palpable and overriding error — Charter of human rights and freedoms, CQLR, c. C-12, ss. 132, 133.
S regularly attended the public meetings of the municipal council of the City of Saguenay. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying “in the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. When the mayor refused, S complained to the Commission des droits de la personne et des droits de la jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.
The Commission limited its investigation to the question whether the prayer was discriminatory. It considered the evidence to be sufficient to submit the dispute to the Human Rights Tribunal, but it did not do so itself, because the Tribunal had recently decided a similar case and because it considered S to be in a position to defend his individual rights by himself. S then pursued his remedy, with the support of the Mouvement laïque québécois (“MLQ”), by means of an application to the Tribunal. The City then adopted a by-law whose purpose was to regulate the recitation of the prayer, and that also changed the wording of the prayer and provided for a two-minute delay between the end of the prayer and the official opening of council meetings. The mayor and the councillors continued to act in the same way as described above, however, and S and the MLQ amended their motion to ask the Tribunal to declare the by-law to be inoperative and of no force or effect in relation to S.
The Tribunal granted the application, finding that the prayer was, when considered in light of its context, religious in nature and that the City and its mayor, by having it recited, were showing a preference for one religion to the detriment of others, which constituted a breach of the state’s duty of neutrality. The Tribunal also concluded that the prayer and the exhibiting of religious symbols resulted in an interference with S’s freedom of conscience and religion that was more than trivial or insubstantial, and that the interference was discriminatory. It declared the by-law inoperative and invalid, ordered the City and the mayor to cease the recitation of the prayer and to remove all religious symbols from the rooms where the council’s meetings were held, and awarded $30,000 in compensatory and punitive damages to S. It refused to award the reimbursement of extrajudicial fees, however, because, in its view, the City and the mayor were not guilty of an improper use of procedure.
The Court of Appeal allowed the appeal. In its opinion, the question of the religious neutrality of the state was a matter of importance to the legal system that required the application of the standard of review of correctness. It held that the prayer at issue expressed universal values and could not be identified with any particular religion, and that the religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality. According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion. The interference, if any, was trivial or insubstantial.
Held: The appeal should be allowed.
Per McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.: Where a statute provides for an appeal from a decision of a specialized administrative tribunal such as the Tribunal, the appropriate standards of review are the ones that apply on judicial review, not on an appeal. The Tribunal is not a court to which the Courts of Justice Act applies. Its jurisdiction is based on the mechanism for receiving and processing complaints that is provided for in the Quebec Charter and implemented by the Commission, and is protected by the Charter by means of a privative clause and a supporting clause. The Tribunal’s procedure reflects its nature as a specialized administrative tribunal, and the existence of a right to appeal with leave does not change that nature. Nor is the fact that the Tribunal does not have exclusive jurisdiction in discrimination cases and that a complainant can also turn to the ordinary courts determinative. The scope of a right to appeal and the absence of exclusive jurisdiction may sometimes affect the deference to be shown to decisions of a specialized administrative tribunal, but they do not mean that the standards of review with respect to judicial review cease to apply. The choice of the applicable standard depends primarily on the nature of the questions that have been raised. Deference should normally be shown where the Tribunal acts within its specialized area of expertise, interprets the Quebec Charter and applies that charter’s provisions to the facts to determine whether a complainant has been discriminated against. However, the presumption of deference can sometimes be rebutted if a contextual analysis reveals that the legislature clearly intended not to protect the tribunal’s jurisdiction in relation to certain matters; the existence of concurrent and non-exclusive jurisdiction on a given point of law is an important factor in this regard. The presumption can also be rebutted where general questions of law are raised that are of importance to the legal system and fall outside the specialized administrative tribunal’s area of expertise.
In this case, the Court of Appeal erred in applying the standard of correctness to all the Tribunal’s conclusions while assessing the expert evidence on the basis of the palpable and overriding error criterion. Although the correctness standard applied to the question of law relating to the scope of the state’s duty of religious neutrality that flows from freedom of conscience and religion, that of reasonableness applied on the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom, the determination of whether it was discriminatory, the qualification of the experts and the assessment of the probative value of their testimony. Where the religious symbols were concerned, on the other hand, the Court of Appeal was right to find that, because the Commission had not conducted an investigation into this question, it was not open to the Tribunal to consider it.
The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. The pursuit of the ideal of a free and democratic society requires the state to encourage everyone to participate freely in public life regardless of their beliefs. A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity, and it helps preserve and promote the multicultural nature of Canadian society. 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. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. The Tribunal was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. Contrary to what the Court of Appeal suggested, the state’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.
A provision of a statute, of regulations or of a by-law will be inoperative if its purpose is religious and therefore cannot be reconciled with the state’s duty of neutrality. Where the purpose of an impugned provision is to regulate a practice engaged in by state officials that is itself being challenged, the analysis of the provision must take account of the practice it regulates. In a case in which a complaint of discrimination based on religion concerns a state practice, the alleged breach of the duty of neutrality must be established by proving that the state is professing, adopting or favouring one belief to the exclusion of all others and that the exclusion has resulted in interference with the complainant’s freedom of conscience and religion. To conclude that an infringement has occurred, the Tribunal must be satisfied that the complainant’s belief is sincere, and must find that the complainant’s ability to act in accordance with his or her beliefs has been interfered with in a manner that is more than trivial or insubstantial. Where the impugned practice is regulated by a legislative provision, the state can invoke s. 9.1 of the Quebec Charter to show that this provision that, in its effect, infringes freedom of conscience and religion constitutes a reasonable and justified limit in a free and democratic society.
The Tribunal’s finding in this case that there had been discriminatory interference with S’s freedom of conscience and religion for the purposes of ss. 3 and 10 of the Quebec Charter was reasonable. The recitation of the prayer at the council’s meetings was above all else a use by the council of public powers to manifest and profess one religion to the exclusion of all others. On the evidence in the record, it was reasonable for the Tribunal to conclude that the City’s prayer is in fact a practice of a religious nature. Its decision on this point was supported by reasons that were both extensive and intelligible, and the background facts, which were reviewed in detail, support its conclusion. Likewise, the Tribunal’s conclusions on the issues of qualifying the expert of S and the MLQ and of the probative value of his opinion were not unreasonable. A relationship between an expert and a party does not automatically disqualify the expert. Even though the Tribunal did not discuss the expert’s independence and impartiality in detail, it was very aware of his relationship with the MLQ and of his views with respect to secularism; it was only after discussing all the evidence, including the substance of the testimony of all the experts, that it decided to accept his testimony.
The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non-believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion. The attempt at accommodation provided for in the by-law, namely giving those who preferred not to attend the recitation of the prayer the time they needed to re-enter the council chamber, had the effect of exacerbating the discrimination. The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and religion was more than trivial or insubstantial were supported by solid evidence, and deference is owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.
Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. Moreover, it has not been established in this case that the prayer is non-denominational. The Tribunal’s findings of fact instead tend toward the opposite result. Be that as it may, the respondents themselves conceded at the hearing that the prayer is nonetheless a religious practice. Even if it is said to be inclusive, it may nevertheless exclude non-believers. As for the proposed analogy to the prayer recited by the Speaker of the House of Commons, in the absence of evidence concerning that prayer, it would be inappropriate to use it to support a finding that the City’s prayer is valid. Finally, the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble articulates the political theory on which the Charter’s protections are based. The express provisions of the Canadian Charter and of the Quebec Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This is necessary to ensure that those to whom these charters apply enjoy the full benefit of the rights and freedoms, and that the purpose of the charters is attained.
Insofar as the by-law infringed the Quebec Charter, the Tribunal could declare it to be inoperative in relation to S, but it could not declare it to be “inoperative and invalid” without further clarification, as that would amount to a general declaration of invalidity, which the Tribunal does not have the jurisdiction to make. The Tribunal could make any necessary orders to put an end to the identified interference in relation to the prayer. Even though it should not have taken certain factors into account in awarding compensatory damages, its decision on this subject, viewed as a whole, satisfied the reasonableness test. As for the Tribunal’s decision on the issue of punitive damages, reasons that are intelligible were given for it, and the Tribunal is entitled to deference. Finally, the Tribunal’s conclusion that no improper use of procedure had occurred and its refusal to award S and the MLQ the reimbursement of their extrajudicial fees were reasonable.
Per Abella J.: There is agreement with the majority that the appeal should be allowed. However, using different standards of review for each different aspect of a decision is a departure from the Court’s jurisprudence that risks undermining the framework for how decisions of specialized tribunals are generally reviewed. The reasons of a specialized tribunal must be read as a whole to determine whether the result is reasonable.
Questions of general importance to the legal system attract the correctness standard only if they are outside the tribunal’s expertise. Since state neutrality is about what the role of the state is in protecting freedom of religion, part of the inquiry into freedom of religion necessarily engages the question of state religious neutrality. It is not a transcendent legal question meriting its own stricter standard, it is an inextricable part of deciding whether discrimination based on freedom of religion has taken place. This is the Tribunal’s daily fare. To extricate state neutrality from the discrimination analysis as being of singular significance to the legal system, elevates it from its contextual status into a defining one.
Cases Cited
By Gascon J.
Distinguished: Freitag v. Penetanguishene (Town) (1999), 47 O.R. (3d) 301; Allen v. Renfrew (County) (2004), 69 O.R. (3d) 742; approved: Commission scolaire Marguerite-Bourgeoys v. Gallardo, 2012 QCCA 908, [2012] R.J.Q. 1001; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Dhawan, 2000 CanLII 11031; Compagnie minière Québec Cartier v. Québec (Commission des droits de la personne), 1998 CanLII 12609; disapproved: Association des pompiers de Laval v. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 2041, [2011] R.J.D.T. 1025, leave to appeal refused, [2012] 2 S.C.R. vi; Gaz Métropolitain inc. v. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201, [2011] R.J.Q. 1253; Commission des droits de la personne et des droits de la jeunesse v. 9185-2152 Québec inc. (Radio Lounge Brossard), 2015 QCCA 577; Bertrand v. Commission des droits de la personne et des droits de la jeunesse, 2014 QCCA 2199; Commission scolaire des Phares v. Commission des droits de la personne et des droits de la jeunesse, 2012 QCCA 988, [2012] R.J.Q. 1022; Coutu v. Tribunal des droits de la personne, [1993] R.J.Q. 2793; referred to: Commission des droits de la personne et des droits de la jeunesse v. Laval (Ville de), [2006] R.J.Q. 2529; Commission scolaire des Phares v. Commission des droits de la personne et des droits de la jeunesse, 2006 QCCA 82, [2006] R.J.Q. 378; Bombardier inc. (Bombardier Aerospace Training Center) v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650, [2013] R.J.Q. 1541, leave to appeal granted, [2014] 1 S.C.R. vii; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, [2008] 2 S.C.R. 195; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100; Conférence des juges de paix magistrats du Québec v. Québec (Procureur général), 2014 QCCA 1654; For-Net Montréal inc. v. Chergui, 2014 QCCA 1508; Association des juges administratifs de la Commission des lésions professionnelles v. Québec (Procureur général), 2013 QCCA 1690, [2013] R.J.Q. 1593; Imperial Tobacco Canada Ltd. v. Létourneau, 2013 QCCA 1139; Commission de la santé et de la sécurité du travail v. Fontaine, 2005 QCCA 775, [2005] R.J.Q. 2203; Québec (Procureure générale) v. Tribunal des droits de la personne, [2002] R.J.Q. 628; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Ménard v. Rivet, [1997] R.J.Q. 2108; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Oakes, [1986] 1 S.C.R. 103; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304; Richard v. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265; Genex Communications inc. v. Association québécoise de l’industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201, [2009] R.J.Q. 2743; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211; de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; Viel v. Entreprises Immobilières du Terroir ltée, [2002] R.J.Q. 1262.
By Abella J.
Referred to: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467.
Statutes and Regulations Cited
Act to establish the new Code of Civil Procedure, S.Q. 2014, c. 1, s. 22 [not yet in force].
Canadian Charter of Rights and Freedoms , preamble, ss. 1 , 2 , 27 .
Charter of human rights and freedoms, CQLR, c. C-12, ss. 1 to 38, 3, 4, 9.1, 10, 11, 15, 44, 49, 52, 62, 71, 74 et seq., 77, 78, 80 to 82, 84, 100, 101, 104, 109, 110, 111, 111.1, 113, 114 to 124, 123, 126, 132, 133.
Code of Civil Procedure, CQLR, c. C-25, arts. 234, 417.
Constitution Act, 1867 , preamble.
Courts of Justice Act, CQLR, c. T-16.
Règlement VS-R-2008-40, City of Saguenay, November 3, 2008.
Authors Cited
Béchard, Donald, avec la collaboration de Jessica Béchard. L’expert. Cowansville, Qué.: Yvon Blais, 2011.
Ducharme, Léo, et Charles-Maxime Panaccio. L’administration de la preuve, 4e éd. Montréal: Wilson & Lafleur, 2010.
Magnet, Joseph Eliot. “Multiculturalism and Collective Rights”, in Gérald-A. Beaudoin and Errol Mendes, eds., Canadian Charter of Rights and Freedoms , 4th ed. Markham, Ont.: LexisNexis, 2005, 1259.
Moon, Richard. “Freedom of Religion Under the Charter of Rights : The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497.
Paciocco, David M. “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts” (2009), 34 Queen’s L.J. 565.
Quebec. Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles. Building the Future: A Time for Reconciliation. Québec: The Commission, 2008.
Royer, Jean-Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
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APPEAL from a judgment of the Quebec Court of Appeal (Morin, Hilton and Gagnon JJ.A.), 2013 QCCA 936, [2013] R.J.Q. 897, 363 D.L.R. (4th) 62, 76 C.H.R.R. D/430, [2013] AZ-50969282, [2013] Q.J. No. 5220 (QL), 2013 CarswellQue 7596 (WL Can.), setting aside a decision of the Quebec Human Rights Tribunal, 2011 QCTDP 1, [2011] R.J.Q. 507, [2011] AZ-50722559, [2011] Q.H.R.T.J. No. 1 (QL), 2011 CarswellQue 7400 (WL Can.). Appeal allowed.
Luc Alarie, for the appellants.
Richard Bergeron, Arnaud Gosselin-Brisson and Laurence Dubois, for the respondents.
Louise Cadieux, for the intervener the Human Rights Tribunal.
Albertos Polizogopoulos and Stefan Cyr, for the intervener the Evangelical Fellowship of Canada.
Ranjan K. Agarwal, Robert W. Staley, Jack R. Maslen and Philip H. Horgan, for the interveners the Catholic Civil Rights League, the Faith and Freedom Alliance and Association des parents catholiques du Québec.
Tim Dickson and Alexander Boland, for the intervener the Canadian Secular Alliance.
Kristian Brabander and Elisa Clavier, for the intervener the Canadian Civil Liberties Association.
English version of the judgment of McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. delivered by
Gascon J. —
I. Introduction
[1] The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of human rights and freedoms, CQLR, c. C-12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian Charter ”). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.
[2] The respondents, the City of Saguenay and its mayor, would like to continue the recitation of a prayer at the start of the municipal council’s public meetings. In their view, the issue is one of respect for their freedom of conscience and religion. The appellants, the Mouvement laïque québécois (“MLQ”) and Alain Simoneau, are asking that the respondents cease this practice, which, they submit, interferes in a discriminatory manner with Mr. Simoneau’s freedom of conscience and religion. They demand that the City and its official comply with the state’s duty of neutrality.
[3] The Quebec Human Rights Tribunal (“Tribunal”) concluded that the recitation of the prayer was in breach of the state’s duty of neutrality and that it interfered in a discriminatory manner with Mr. Simoneau’s freedom of conscience and religion. The Court of Appeal reversed that decision on the basis that the prayer was non-denominational and fundamentally inclusive. According to the Court of Appeal, such a prayer could not interfere with Mr. Simoneau’s rights.
[4] I would allow the appeal. Through the recitation of the prayer at issue during the municipal council’s public meetings, the respondents are consciously adhering to certain religious beliefs to the exclusion of all others. In so doing, they are breaching the state’s duty of neutrality. The resulting discriminatory interference with Mr. Simoneau’s freedom is supported by the evidence the Tribunal accepted.
II. Facts
[5] The City of Saguenay is a product of the amalgamation in 2002 of seven municipalities, including Chicoutimi, Jonquière and La Baie. Mr. Tremblay has been the mayor of Saguenay since it was founded. At the relevant time, Mr. Simoneau resided in Saguenay. He considers himself an atheist.
[6] Mr. Simoneau, who is interested in municipal politics, regularly attended the municipal council’s public meetings, which were held at the borough hall of either Chicoutimi, Jonquière or La Baie. At the start of each meeting, the mayor and councillors would be standing. The mayor, using a microphone, would then recite a prayer after making the sign of the cross while saying [translation] “[i]n the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and municipal officials would cross themselves at the beginning and end of the prayer as well. In the Chicoutimi council chamber, there was a Sacred Heart statue fitted with a red electric votive light. In the council chamber in La Baie, there was a crucifix hanging on the wall.
[7] Between 2002 and November 2008, there was no by-law governing the prayer. At the time, the prayer read as follows:
[translation] O God, eternal and almighty, from Whom all power and wisdom flow, we are assembled here in Your presence to ensure the good of our city and its prosperity.
We beseech You to grant us the enlightenment and energy necessary for our deliberations to promote the honour and glory of Your holy name and the spiritual and material [well-being] of our city.
Amen.
[8] When Mr. Simoneau attended the council meetings, he felt uncomfortable with this display, which he considered religious. At the meeting on December 4, 2006, he therefore asked the mayor to stop the practice. When the mayor refused, Mr. Simoneau complained to the Commission des droits de la personne et des droits de la jeunesse (“Commission”) in a letter dated March 22, 2007.
[9] The MLQ formally filed a complaint on Mr. Simoneau’s behalf on March 28, 2007, as it is authorized to do by s. 74 para. 3 of the Quebec Charter. The MLQ is a non-profit organization of which Mr. Simoneau is a member. It advocates the complete secularization of the state in Quebec. The complaint referred to the wording of the prayer and the context in which the prayer was recited. Mr. Simoneau argued that his freedom of conscience and religion was being infringed. He asked that the recitation of the prayer cease and that all religious symbols, including the statue and the crucifix, be removed from council chambers.
[10] The Commission gave the parties its statement of facts in February 2008. It indicated that its investigation would deal only with the question whether the prayer was discriminatory and that it would not be investigating the religious symbols. In May, after the Commission had completed its investigation, it informed Mr. Simoneau that it considered the evidence with respect to the prayer to be sufficient to submit the dispute to the Tribunal. However, it advised him that it had decided not to do so itself, because the Tribunal had recently decided a similar case (Commission des droits de la personne et des droits de la jeunesse v. Laval (Ville de), [2006] R.J.Q. 2529) and because it considered the complainant to be in a position to defend his individual rights by himself.
[11] Mr. Simoneau then decided, with the MLQ’s support, to pursue his remedy by means of an application to the Tribunal. Section 84 para. 2 of the Quebec Charter authorized them to do so in such a case. They served their motion to institute proceedings on the respondents on July 22, 2008. They alleged that the recitation of the prayer amounted to discriminatory interference with Mr. Simoneau’s freedom of conscience and religion, contrary to ss. 3 and 10 of the Quebec Charter. They also submitted that the prayer interfered in a discriminatory manner with his right to dignity and his right to information, contrary to ss. 4, 10, 11, 15, 44 and 82 of the Quebec Charter. They asked the Tribunal to order the City and its mayor to cease the recitation of the prayer and to remove all religious symbols from the chambers in which the council’s meetings were held. They claimed $50,000 in compensatory and punitive damages.
[12] Four months later, on November 3, 2008, the City adopted By-law VS-R-2008-40 (“By-law”). The purpose of this by-law was to regulate the recitation of the prayer from then on, and it also changed the wording of the prayer and provided for a two-minute delay between the end of the prayer and the official opening of council meetings. It read in part as follows:
[translation] WHEREAS there exists within the City of Saguenay a tradition to the effect that Council meetings [are preceded by] the recitation of a prayer, the text of which is reproduced below;
WHEREAS the purpose of this tradition is to ensure decorum and highlight the importance of the work of the councillors;
WHEREAS the members of Council, unanimously, want this tradition to continue and wish to pursue it on the basis of their individual rights and freedoms, in particular their rights to freedom of expression, conscience and religion;
WHEREAS it is important to specify that the Council members and the public are in no way obligated to recite this prayer or attend its recitation;
WHEREAS it is important to ensure that members of the Council and of the public who do not wish to attend the recitation of this prayer may nevertheless attend the Council session in its entirety;
. . .
NOW THEREFORE, it is enacted as follows:
. . .
SECTION 2 - Bylaw VS-2002-39 is amended to add section 16.1, which provides the following:
SECTION 16.1. - Once the chairperson of the meeting enters the Council deliberation room, the Council members who wish to do so may rise to recite the traditional prayer, the text of which is reproduced below.
Almighty God, we thank You for the great blessings that You have given to Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as City Council members and help us to be aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions.
Amen.
To allow Council members and the public who do not wish to attend the recitation of the prayer to take their places in the room, the chairperson of the meeting will declare the Council session open two minutes after the end of the recitation of the prayer.
[13] After the By-law was adopted, although the wording of the prayer had changed, the mayor and the councillors continued to act in the same way as described above. In response, the appellants amended their motion to ask the Tribunal to further declare the By-law to be inoperative and of no force or effect in relation to Mr. Simoneau.
III. Judicial History
A. Human Rights Tribunal (2011 QCTDP 1)
[14] Although the Commission had told the parties that its investigation would not include the religious symbols, the Tribunal began by finding that it had jurisdiction to deal with that issue in addition to that of the prayer (para. 26). It stated that the case ultimately raises three questions (para. 193): (1) Do the By-law, the recitation of the prayer and the exhibiting of religious symbols interfere with Mr. Simoneau’s right to full and equal recognition and exercise of his freedom of conscience and religion without discrimination based on religion, contrary to ss. 3, 4, 10, 11 and 15 of the Quebec Charter? (2) If so, did the City and its mayor establish a defence consistent with the Quebec Charter? (3) If there is unjustified discriminatory interference, what remedies are appropriate?
[15] To answer these questions, the Tribunal considered the right to equal exercise of freedom of conscience and religion, the purpose and scope of that freedom, and the state’s duty of neutrality that flows from it (paras. 194-211). In analyzing the religious nature of the prayer, it reviewed the evidence, including the testimony of numerous witnesses and the op