Saguenay right-to-pray ruling: What it means for religious freedom in politics

Thou shalt not pray in council chambers.

At least not in the form of a public recitation to open meetings, the Supreme Court of Canada ruled Wednesday, ending an eight-year legal case involving the right of city councillors in Saguenay, Que., to cross themselves and recite a 20-second Catholic prayer before official municipal business.

The unanimous decision from Canada's top court had an immediate impact across the country.

• Read the Supreme Court's ruling (PDF)
• Supreme Court rules against prayer at city council meetings
• Halifax council revisiting prayer after Supreme Court ruling
• Ottawa city council puts pause on prayer after top court ruling

City of Halifax legal staff began reviewing its morning "invocation," which begins with the words "God our creator" and ends with "amen."

Ottawa's city council also dropped its morning prayer on Wednesday, as did the community of Dieppe, N.B.
Both municipalities stated they would review the practice — something constitutional law expert Errol Mendes suspects many town and city councils will be doing in the days to come.

Just as the Quebec Charter of Human Rights and Freedoms, which formed the basis for the Supreme Court ruling, has a duty to ensure that no particular belief should be favoured or hindered, the court ruled that "the same holds true for non-belief."

In effect, Mendes explained, the ruling means freedom of conscience and religion includes the freedom not to observe any faith.

In a manner of speaking, "it's freedom from religion," he said. 

Applies nationwide

That should not be taken to mean that Canada is against all religion, however. Or even necessarily its public manifestation. 

The Supreme Court of Canada…represents the legal perspective across the country- University of Windsor law professor Richard Moon

The ruling, for example, did not deal with religious icons in provincial legislatures or the prayers that open parliamentary sessions in Ottawa. And there are some legal observers who feel that some forms of public prayer and reflection would be fine as long as they are not overtly exclusive.

In essence, the ruling said "just that we welcome religions of all faiths and practices in Canada — in the private sphere," Mendes said.

Although Wednesday's decision was based on the Quebec charter, Mendes said it's implicit that the ruling applies nationwide.

University of Windsor law professor Richard Moon, whose work on freedom of religion was cited as part of the Supreme Court decision, said the same provisions under the Quebec charter would be reflected in the Canadian Charter of Rights and Freedoms anyway.

"When the Supreme Court of Canada makes a determination, even when it relates only to a particular circumstance of the Quebec charter, the fact is it represents the legal perspective across the country," Moon said. 

The right-to-pray matter began in 2007, when Sagenuay resident Alain Simoneau, an atheist, first filed a complaint with the Quebec Human Rights Tribunal about elected officials praying in council chambers before meetings.

Mayor Jean Tremblay, a devout Catholic, was ordered to cease the practice. He instead appealed the decision to the Quebec Court of Appeal, which ruled in his favour in 2011.

Simoneau bumped the case up to the Supreme Court of Canada, which agreed last year to hear it.

Parliament possibly exempt

In its decision on Wednesday, the court ruled that the recitation of the prayer infringed on freedom of religion rights by "profess[ing] one religion to the exclusion of all others." 

A "neutral public space," the ruling said, must be "free from coercion…and is intended to protect every person's freedom and dignity."

While the city of Saguenay argued that even the House of Commons holds a prayer before its sessions, the court reasoned that such proceedings are likely subject to parliamentary privilege.

Tremblay and the city of Saguenay have been ordered to pay Simoneau $33,200 in compensatory damages, punitive damages and costs.

What wasn't ruled upon in this case, however, was Simoneau's original demand for the removal of religious iconography such as a crucifix and a Sacred Heart statue from Saguenay's council chambers.

Diana Ginn, who teaches a course on law and religion at Dalhousie University's Schulich School of Law, noted that the symbols were not covered in the Supreme Court decision because the original tribunal judgment focused only on the prayer issue.

"Therefore, it had to be set aside for this case," she said. "But there's nothing to stop somebody from bringing a complaint against the Sacred Heart."

A crucifix still overlooks the speaker's throne in the Quebec National Assembly, though politicians including former Quebec Premier Pauline Marois have argued it is a cultural symbol, not a religious article.

"This balance of how do you find the line between what's a reflection of the history of a place, and what's an expression of religion that's allowable in the face of state neutrality is going to lead to a lot of discussion," Ginn said.

Public prayer not fully banned

Wednesday's ruling doesn't mean praying is strictly banned in any kind of public-service context.

"There is no complete ban on prayer," said Gilles Levasseur, a law professor at the University of Ottawa.

"You can still have a statement that encompasses everybody, or invites reflection from people for their own beliefs,"

Levasseur said. "The key thing is the wording. It might not be a 'prayer,' maybe it's something generic. Maybe it's a 'recital' — some time to reflect on goodness of society and what we need to do to improve the wellbeing of our society," he said.

Mendes suggested another workaround.

"How about a moment of silence? Atheists can still reflect on what the meaning of life is. It could be an alternative," he said.

"A moment of silence can also just be a moment of reflection. I think even those who don't believe in any religion can probably get behind that."