Mouvement laïque québécois v. Saguenay (City)2015 SCC 16 (Human rights — Freedom of conscience and religion — Administrative law — Standard of review)

On appeal from the judgment of the Quebec Court of Appeal (2013 QCCA 936) dated May 27, 2013, setting aside a decision of the Quebec Human Rights Tribunal (2011 QCTDP 1).

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 [TRANSLATION] “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 (9:0): 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 theCharter 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 theCharter’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.

Reasons for decision written by Gascon J., concurring reasons by Abella J.

Neutral Citation: 2015 SCC 16. Docket No. 35496.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do