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Payette v. Ville de Laval
(2006)
http://www.mlq.qc.ca/6_dossiers/priere/victoire_priere_laval_en.html
HUMAN RIGHTS TRIBUNAL
Canada
PROVINCE OF QUEBEC
DISTRICT OF LAVAL
No. 540-53-000021-042
DATE: September 22, 2006
______________________________________________________________________
PRESENT: THE HONOURABLE MICHÈLE RIVET
WITH THE ASSISTANCE OF ASSESSORS: Mtre. William Hartzog
Jean Decoster
______________________________________________________________________
COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE, a public
body constituted pursuant to the Charter of human rights and freedoms
(R.S.Q., c. C-12), the seat of which is located at 360, rue Saint-Jacques
Ouest, Montreal (Quebec) H2Y 1P5, acting on behalf of DANIELLE PAYETTE
Plaintiff
v.
VILLE DE LAVAL, a legal person established in the public interest, the seat
of which is located at 1, Place du Souvenir, Laval (Quebec) H7V 1W7
Defendant
and
MOUVEMENT LAÏQUE QUEBÉCOIS, a legal person established in the private interest,
the seat of which is located at 335, rue Ontario (Quebec) H2X 1H7
Complainant before the Commission des droits de la personne
and des droits de la jeunesse
and
DANIELLE PAYETTE, domiciled and residing in Laval (Quebec)
Victim before the Commission des droits de la personne and des droits
de la jeunesse
______________________________________________________________________
JUDGMENT
______________________________________________________________________
1. The Human Rights Tribunal (hereinafter, the "Tribunal") is seized of an
application introductive of suit filed by the Commission des droits de
la personne et des droits de la jeunesse (hereinafter, the "Commission"),
which, acting on behalf of Danielle Payette, alleges in particular that
the defendant, Ville de Laval, interfered, in a discriminatory manner, with
Ms. Payette's freedom of religion and conscience by beginning the public
sittings of City Council with the recitation of a prayer, contrary to
sections 3 and 10 of the Charter of human rights and freedoms.1
2. The Commission also alleges that Ville de Laval interfered with Ms.
Payette's rights guaranteed under sections 4, 10, 13, 44 and 52 of the
Charter of human rights and freedoms by adopting section 12 of by-law
L-5480 concerning the internal procedures of City Council of Ville de Laval
and repealing by-laws L-1 and L-4889 and their amendments, which authorizes
the chair of City Council to recite a prayer at a public sitting of Council.
3. The Commission further alleges that Ville de Laval interfered with the
rights guaranteed by sections 3, 4, 10, 13 and 44 of the Charter of human
rights and freedoms by adopting, on April 3, 2006, resolution 2006/247
"recitation - prayer" regarding the recitation of the following prayer
by the chair of Council at the opening of each meeting of Ville de Laval
City Council:
[TRANSLATION]
We beseech you, Lord, to deign to grant us your grace and the wisdom
required to conduct our meeting and run our city well. Amen.
4. Accordingly, the Commission, acting on behalf of Ms. Payette and in the
public interest, asks the Tribunal:
[TRANSLATION]
TO FIND that, on April 2, 2001, August 6, 2001, October 1, 2001 and
January 14, 2002, the defendant, Ville de Laval, interfered, in a
discriminatory manner, with Danielle Payette's right to freedom of
religion and conscience by beginning the public sittings of City Council
with the recitation of a prayer, the whole contrary to sections 3 and 10
of the Charter;
TO FIND that City of Laval also interfered, in a discriminatory manner,
with Danielle Payette's right to respect for her dignity and her right to
information without distinction or exclusion based on religion, the whole
contrary to sections 4, 10 and 44 of the Charter;
TO ORDER VILLE DE LAVAL TO CEASE the practice of the recitation of the
prayer at public sittings of City Council;
TO RENDER INOPERATIVE section 12 of by-law L-5480 concerning the internal
procedures of City Council of Ville de Laval and repealing by-laws L-1 and
L-4889 and their amendments, to the extent that it interferes with the
rights guaranteed by sections 3, 4, 10, 13, 44 and 52 of the Charter;
TO RENDER NULL AND VOID resolution 2006/247 "recitation - prayer" of
April 3, 2006 concerning the recitation of the following prayer by the
chair at the opening of each meeting of City Council of Ville de Laval:
[TRANSLATION]
We beseech you, Lord, to deign to grant us your grace and the wisdom
required to conduct our meeting and run our city well. Amen.
to the extent that it interferes with the rights guaranteed by sections
3, 4, 10, 13 and 44 of the Charter.
THE WHOLE with costs.
5. Ville de Laval argues in its factum that the recitation of a prayer before
the sitting of City Council of Ville de Laval does not constitute
discriminatory interference with the rights of the complainant to freedom
of religion and conscience, and that the defendant in no way interfered,
in a discriminatory manner, with the complainant's right to privacy or
right to information.
6. Ville de Laval argues that section 12 of bylaw L-5480 in no way interferes
with the rights guaranteed by sections 3, 4, 10, 13, 44 and 52 of the
Charter of human rights and freedoms, which must, in particular, be
interpreted considering the preamble of the Canadian Charter of Rights
and Freedoms.2 According to Ville de Laval, interference with a right
protected by the Charter of human rights and freedoms—if there is, in fact,
any, which it denies—would actually be extremely minimal and fully
justified under section 9.1 of the Charter of human rights and freedoms,
as well as under the preamble and provisions of the Canadian Charter.
7. Ville de Laval contends that the conclusions the plaintiff seeks, in its
application introductive of suit, are without any foundation and, as
worded, exceed the jurisdiction of the Human Rights Tribunal.
1. The facts as adduced
1.1 The legal and factual context of the recitation of the prayer
8. It has been the tradition since the creation of Ville de Laval, in 1965,
for the chair to open meetings of City Council with a prayer. Certain
official documents dating as far back as 1935 indicate that practice was
in effect in a number of cities, the merger of which resulted in the
creation of Ville de Laval.
9. On December 6, 1982, Ville de Laval adopted by-law L-5480 concerning the
internal procedures of City Council of Ville de Laval and repealing by-laws
L-1 and L-4889 and their amendments, sections 11 and 12 of which officially
marked the integration of the prayer into the procedure for opening a
public sitting of Council:
[TRANSLATION]
11. As of the time scheduled for the sitting and as soon as there is a
quorum, the chair goes to his or her reserved place in the Council
room, "from which, seated at all times, he or she directs the debates".
12. All those then present in the Council room must rise and remain
standing, and the chair can then recite the prayer.3
10. Mtre. Guy Collard, who has been the city's clerk since 1996 and who
automatically attends Council meetings, mentioned that the prayer recited
at the public meetings of City Council of Ville de Laval has been the same
since the creation of Ville de Laval in 1965. The prayer is as follows:
[TRANSLATION]
We beseech you, Lord, to deign to grant us your grace and the wisdom
required to conduct our meeting and run our city well. Amen.4
11. Mtre. Collard mentioned that, in his recent search in the minutes of Ville
de Laval and its forerunner municipalities, he found no resolution adopting
the text of that prayer. Even going back as far as 1935, nowhere did he
find a Council resolution adopting the text of a prayer.
12. In order to dispel all doubt in that regard, City Council of Ville de
Laval adopted, on April 3, 2006, at the time of this trial, a resolution5
confirming its intention to maintain the Council chair's practice of
reciting a prayer the text of which is now in use, at the opening of each
meeting of City Council. That decision was made in the wake of discussions
reportedly held in a meeting of the members in caucus. The resolution reads
as follows:
[TRANSLATION]
WHEREAS the "usual" or “customary” prayer by the Chair of Council at the
opening of each meeting of Council of Ville de Laval has been recited since
the creation of the city in 1965;
WHEREAS that tradition existed beforehand in a number of cities the merger
of which led to the creation of Ville de Laval;
WHEREAS the "usual" or “customary” prayer recited at the opening of the
meetings of Council of Ville de Laval is as follows:
[TRANSLATION]
We beseech you, Lord, to deign to grant us your grace and the wisdom
required to conduct our meeting and run our city well. Amen.
WHEREAS the intention of Council of Ville de Laval to have a prayer at the
opening of each meeting of Council, which was already a traditional
practice, was re-affirmed by the adoption of by-law L-5480 concerning the
internal procedures of City Council of Ville de Laval and repealing by-laws
L-1 and L-4889 and their amendments;
WHEREAS, following a complaint by Danielle Payette and the Mouvement laïque
quebecois, the Commission des droits de la personne et des droits de la
jeunesse sent the municipal authorities resolution CP-422.15, which
proposed that Ville de Laval cease the recitation of a prayer at the
opening of Council meetings and that by-law L-5480 be amended so as to
eliminate the recitation of the prayer on or before February 20, 2004;
WHEREAS the municipal authorities took no action in regard to that
resolution;
WHEREAS the Commission des droits de la personne et des droits de la
jeunesse instituted a proceeding before the Human Rights Tribunal in order
put an end to the recitation of the prayer at Ville de Laval;
WHEREAS the Executive Committee, in resolution CE-2004/1507, gave the law
firm of McCarthy Tetrault the mandate to represent Ville de Laval in this
matter;
WHEREAS all doubt should be dispelled regarding the intention of Council
of Ville de Laval to maintain this tradition, which has been in existence
for over 40 years;
ACCORDINGLY
IT IS PROPOSED BY: Andre Boileau
SECONDED BY: Alexandre Duplessis
And resolved unanimously:
To confirm that Council intends to maintain the tradition of the
recitation of the following "usual" or “customary” prayer by the Chair of
Council at the opening of each meeting of Council of Ville de Laval:
[TRANSLATION]
We beseech you, Lord, to deign to grant us your grace and the wisdom
required to conduct our meeting and run our city well. Amen.
Adopted.
13. Questioned about the resolution adoption procedure, Mtre. Collard said
that, since no member of Council requested an individual vote, he did not
require the members to vote on the adoption of the resolution.
1.2 The recitation of the prayer at the time of the facts in dispute
14. On April 2, 2001, Ms. Payette, resident of Ville de Laval, attended a
public sitting of City Council presided by Mtre. Basile Angelopoulos, chair
of Council of Ville de Laval from November 1997 to November 2005. A few
minutes before the sitting began, Ms. Payette took a seat in the room, in
the last row of the section reserved for the public.
15. Ms. Payette told us that, at the sitting, the councillors entered first
and people rose when the mayor and the chair of the meeting arrived. The
recitation of the prayer began at that time.
16. Ms. Payette said that she first rose, as everyone else did, and then sat
down again when she realized that a prayer was being recited. In her
cross-examination, Ms. Payette admitted that her testimony differed from that
she gave in her examination on discovery, on March 3, 2005, when she stated
that she remained seated when the other people rose.6
17. She said she was very uncomfortable and uneasy because the people around
her were standing and she remained seated. She was forced to disclose her
personal convictions as a non-believer, whereas [TRANSLATION] "it wasn't
appropriate there" to do so since it was [TRANSLATION] "something completely
private".
18. Ms. Payette could not say whether she was the only person to remain
seated, since she was herself seated and was surrounded by many people who
were standing.
19. Ms. Payette related that, once the prayer had been read, the chair of the
meeting, the mayor and the councillors made the sign of the cross. Although
she was unable to say whether all the members of the public made the sign
of the cross, she mentioned that she saw several of them do so, then sit down.
20. On June 11, 2001, Ms. Payette filed a complaint with the Commission,
alleging that she was a victim of discrimination based on religion.
21. Subsequently, Ms. Payette attended other meetings of City Council, namely,
those of August 6, 2001, October 1, 2001 and January 14, 2002. Each meeting
opened in a manner identical to the meeting of April 2, 2001, including the
recitation of the prayer. At each of these meetings, she remained seated
for the prayer.
22. At the meeting of October 1, 2001, during the public question period,
Ms. Payette asked the mayor whether he intended to respond to the complaint
filed with the Commission regarding the recitation of the prayer at City
Council. She related the event as follows:
[TRANSLATION]
In the end, I really did not have time to finish my question because there
was a lot of booing in the room and it was like I told you in October 2001,
it was just before a municipal election and there was much turmoil. And it
was also after the events of September 2001. I make that connection because
there is one, you will see. They started booing. Then someone told me to go
and sit down and that I was crazy, using words that I will not repeat
in court.
But, what was said to you? (Counsel for the Commission)
You want to know?
Yes, I want to know what was said. (Counsel for the Commission)
One man said to me: "Go sit down, you damn crazy woman." And another one
started screaming: "It's because of people like you that the World Trade
Center came down".
Do you recall that many people were booing? (Counsel for the Commission)
Yes.
How many people were at the meeting, as far as you can recall? (Counsel
for the Commission)
Maybe three hundred.
Was the room full, as far as you can recall? (Counsel for the Commission)
Yes.
Did the chair of the meeting speak in the wake of the reactions of those
present? (Counsel for the Commission)
Well, I would have liked him to tell people to be quiet and to say… to ask
for calm, which he did not do. So I was forced to address the mayor again
and ask him to respond to my question or to calm down those there because
they were still shouting around me. If I remember correctly, it was then
that the mayor said: "OK, Ms. Payette, the matter is in my attorneys' hands.
And what did you do after that? (Counsel for the Commission)
I went and sat down.7
23. Ms. Payette said she was humiliated by the reaction of some members of
the audience when she spoke.
24. Lastly, Ms. Payette attended the Council meeting of January 14, 2002.
She remained seated when the prayer was recited. She said that time there
was [TRANSLATION] "a little extra discomfort", since people could recognize
her because of the question she had asked at the meeting of October 1, 2005.
25. Mtre. Guy Collard, clerk of Ville de Laval, automatically attends the
meetings of City Council. His testimony matched that of Ms. Payette as
regards the recitation of the prayer. He added that the chair sometimes
hits the gavel lightly a few times to call everyone to order. According to
him, some people stand, while others do not. He said the following about
the sign of the cross:
[TRANSLATION]
I personally do not make the sign of the cross and a number of people do so
around me, among the councillors. I have noted that several people cross
themselves.8
26. Mtre. Collard recites the prayer in the chair's absence. Since section 355
of the Cities and Towns Act9 provides that the clerk replaces the chair for
the opening of meetings, in the event of the chair's absence, Mtre. Collard
said he felt he was authorized to recite the prayer at the opening of the
meetings, despite section 12 of by-law L-5480, which does not mention that
it is possible for the clerk to recite the prayer.
27. Questioned as to whether he had ever considered not saying the prayer,
Mtre. Collard said: [TRANSLATION] "absolutely not, never".10 Mtre. Collard
indicated that he could not understand [TRANSLATION] "why, as a public
official", he would change the tradition of a Council whose members wanted
to recite the prayer.
28. Mtre. Basile Angelopoulos confirmed Mtre. Collard's testimony concerning
the opening of Council sittings and the recitation of the prayer, in regard
to the procedure followed by the chair and the behaviour of the people
present at the time it was recited. He said most of those present stood.
As for the sign of the cross, he testified that [TRANSLATION] "others …
crossed themselves, others did not".
29. When he recited the prayer as chair of Council, Mtre. Angelopoulos crossed
himself at the end; however, he testified as follows: [TRANSLATION] "But my
sign of the cross is not exactly the same as that of the others, my
colleagues, since I am of the Greek Orthodox religion".
30. According to Mtre. Angelopoulos, [TRANSLATION] "the majority" of the
members of Council crossed themselves at the end of the prayer when he
officiated as chair of the meeting.
31. Mtre. Collard and Mtre. Angelopoulos mentioned, however, that they were
unaware of the hurtful comments of people in the room directed toward
Ms. Payette at the sitting of October 1, 2001.
1.3 The public nature of the recitation of the prayer and the meeting of
City Council
32. It is not contested that a question period for members of the public is
provided for at City Council meetings as part of the agenda.
33. Hence, although Mtre. Angelopoulos agreed that the question period was
part of Council's public meetings, he specified that the councillors
[TRANSLATION] "do not meet with the public". According to him, Council
could meet without the public being present. However, to his knowledge,
he did not recall that having happened.
34. Questioned concerning the discussions that took place between the members
of Council about the Commission's proposal that the prayer cease being
recited, Mtre. Angelopoulos mentioned that the members did not follow up on
the proposal because, in their opinion, the public was not asked or
required to participate in the recitation of the prayer. The prayer is not
for the public but is [TRANSLATION] "directed toward the members of Council
and is for them". According to Mtre. Angelopoulos, it is for meetings of
elected officials of Ville de Laval. He added that, since the prayer refers
to "our meeting", it “does not contemplate the public in any way”.11
35. Ms. Payette believes that a Council meeting is her meeting as a citizen,
just as it is the meeting of all the citizens who attend it. It is for
everyone, not only for city councillors. In her opinion, the expression
[TRANSLATION] "to conduct our meeting" in the prayer does not mean it is
a meeting for the councillors.
36. Section 322 of the Cities and Towns Act12 establishes the public nature
of the meetings of City Council and the participation of the members of
the public:
322. The sittings of the council shall be public.
A sitting of the council includes a period during which the persons
attending may put oral questions to the members of the council.
The council may, by by-law, prescribe the length of the period, the time at
which it is held and the procedure to be followed in putting a question.
In the case of a municipality whose council is made up of more than 20
councillors, the council may, however, order by by-law that the period of
oral questions by the persons attending be replaced by the procedure
described in the following paragraphs. …
1.4 The objective in reciting the prayer
37. Questioned by counsel for the Mouvement laïque quebecois about the
importance of reciting the prayer aloud at the opening of the meeting,
Mtre. Angelopoulos indicated that it was a matter of reminding those
assembled of the solemnity of the moment and the importance of the
councillors' work. He said the following:
[TRANSLATION]
OK, listen, we come into the room. Everyone is talking; it's very noisy.
Even the councillors are distracted by discussions among themselves, with
citizens or with the department heads. So I stand and I hit the gavel, at
which time all the councillors rise and obviously stop talking. Then it's
time to say OK, we are going to start our work very soon. So that is why I
say that's a moment of solemnity and a reminder of the importance of the
work we have to do. It is during those few seconds that we reiterate that
the objective in reciting the prayer is to continue a tradition, not to try
to change the time of the prayer or the version, or the content, or the way
it is recited.13 [Emphasis added.]
38. Questioned as to whether it would make a difference if the prayer were
recited in caucus rather than at the Council meeting, Mtre. Angelopoulos
reiterated that it was an established tradition in Laval. He said the
following:
[TRANSLATION]
Here again, I say that the recitation of the prayer in Council—I did it for
the eight (8) years I was chair—is to carry on a tradition, not to try to
change the time of the prayer, or the version, or the content, or the way
in which it is recited.14
39. In her testimony, Ms. Payette recited a text that she felt the chair of
the meeting of City Council could read to ensure order and decorum at the
opening of the meeting:
[TRANSLATION]
Welcome to the meeting of the Laval City Council. The members of Council
will proceed to the study of the topics on the agenda. They will debate
them and will vote according to the procedure for the meeting. Citizens are
asked to abide by the procedure for the meeting and to wait for the question
period in order to address the members of Council. Have a good meeting.15
40. Questioned as to whether the text proposed by Ms. Payette could meet his
needs as chair of the meeting, Mtre. Angelopoulos contended that two entirely
different things were involved. Ms. Payette's text would serve only to
remind the members of the public of the procedure for the meeting and that
it must be abided by. He said the following on the subject:
[TRANSLATION]
They are already aware that there is a question period and they have the
agenda. That has nothing to do with the purpose of the prayer. Rather, it's
to remind the members of the public, not the Council members at all, how to
conduct themselves and what they will see.16
41. Questioned as to whether there would be a difference in reciting the prayer
in caucus rather than at the public meeting, Mtre. Angelopoulos mentioned
that, in his estimation, for the eight years he chaired Council, it was a
question of [TRANSLATION] "pursuing a tradition that was there, not to try
to change the time of the prayer or the version or content".
42. Considering the tradition and custom, the proceeding instituted by the
Commission to put an end to the recitation of the prayer, and the intention
of Council of Ville de Laval to retain the text of the prayer recited at the
opening of each Council meeting, Council formally enshrined the wording of
the prayer by resolution,17 on April 3, 2006.
1.5 The testimony of the three experts
43. Three experts testified in this dispute. Each of the three submitted a
report, which was filed of record.
44. Ville de Laval raised an objection to the admissibility of the testimony
of Daniel Baril as an expert witness on the ground that he had special
links with the Mouvement laïque quebecois and he was not sufficiently
qualified.
45. I took that objection under advisement. After analysis, I concluded that
Mr. Baril's testimony as an expert was admissible.
46. Mr. Baril's affiliation with the Mouvement laïque quebecois cannot serve
as a basis for an objection on the ground that the witness is not qualified.
That aspect can be considered only in regard to the evaluation of the
witness's credibility.
47. As for Mr. Baril's qualification as an expert in anthropology and religion,
his resume shows that his studies in anthropology would enable him to
respond to questions on the subject. He holds a specialized BA in religious
sciences from the Universite du Quebec à Montreal (1975). He also holds a
minor in anthropology from the Universite de Montreal (1998) and an MA in
biological anthropology from the same university (2003). Mr. Baril is a
member of the Association des anthropologues du Quebec.
48. The prior requirements for determining the admissibility of expert evidence
were laid down by the Supreme Court of Canada in Mohan.18 In that ruling, the
Supreme Court established that expert evidence is admitted on the basis of
the following criteria: (1) its relevance; (2) its necessity in assisting
the trier of fact; (3) the absence of any exclusionary rule; (4) a properly
qualified expert.
49. As regards, more particularly, the criterion of a properly qualified expert,
the Supreme Court said the following:
The evidence must be given by a witness who is shown to have acquired
special or peculiar knowledge through study or experience in respect of the
matters on which he or she undertakes to testify.19
50. Rarely does the court refuse [TRANSLATION] "to hear an expert because of a
lack of qualifications",20 since that aspect is related more to the probative
value of the testimony.
51. The objection is therefore dismissed as regards those two grounds.
52. Mr. Baril testified, at the request of the Mouvement laïque quebecois, as
an anthropologist specializing in religious science.
53. Mr. Baril is a member of the Mouvement laïque quebecois, of which he was
president from 1981 to 1986 and from 1996 to 2001. He was president of the
Mouvement at the time Danielle Payette filed the complaint with the
Commission.
54. Stuart Brown testified as an expert in the ecumenical and inter-religious
field at the request of Ville de Laval. Executive Director of the Canadian
Centre for Ecumenism, he holds a BA in political science and history from
Carleton University and an MA in Islamology from McGill University, as well
as a PhD in Islamic studies from McGill. He has taught religion and history
in various Canadian and African universities.
55. Solange Lefebvre testified as an expert in theology at the request of
Ville de Laval. She holds a PhD in theology from Universite de Montreal and
a post-MA diploma in social anthropology and ethnology from the Ecole des
hautes etudes en sciences sociales in Paris. She has been a professor at
the faculty of theology and religious sciences of Universite de Montreal
since 1998. She is also the director of the Centre d'etude des religions de
l'Universite de Montreal (CERUM) and holds the chair in religion, culture
and society at that university. The faculty of theology and religious
sciences is part of Universite de Montreal, but has remained a Catholic
faculty. The members of the teaching staff need not be Catholic, but the
appointment of professors in sectors concerning Catholicism must be approved
by the Montreal archdiocese, which approved Ms. Lefebvre's appointment.
56. The three experts acknowledged that the prayer recited by the chair at the
opening of meetings of City Council of Ville de Laval is an invocation to a
superior being.
57. The use of specifically religious notions, such as the word [TRANSLATION]
"Lord", which evokes a superior power, and the expression [TRANSLATION]
"grant us your grace" in the prayer recited at the opening of sittings of
City Council clearly show, according to Mr. Baril, that the recitation of
the text is a call to a superior power. And, if a superior power is called
upon, the text is considered a prayer.
58. In her testimony, Ms. Lefebvre acknowledged that the prayer recited at the
opening of meetings of Council of Ville de Laval could constitute a
supplication for the intervention of a supernatural force.21
59. In the report he filed with the Court, Mr. Baril wrote the following:
[TRANSLATION]
If the text is ecumenical in the Christian meaning of the term, that form
of exhortation is far from universal. … The God of the prayer does not reach
Buddhists, Hindus, Sikhs or members of New Age cultures, a category that has
more than doubled over the past 10 years in Quebec (Statistics Canada).
Furthermore, the ritual in question cannot have meaning for believers
belonging to no religion, agnostics, free thinkers, non-believers and
atheists, a group that accounts for 20% of the population.22
60. Recognizing that [TRANSLATION] "the prayer in question is not, in fact,
explicitly Catholic to the extent that other believers besides Catholics or
Christians may relate to it",23 Mr. Baril added that the gestures that
accompany the recitation of the prayer are an integral part of it. He then
stressed that the sign of the cross made by the chair at the end of the
prayer is a religious sign that refers to an explicitly Christian affiliation
and that it is more specifically Catholics who use it. 24 Hence, in his
opinion, it is an [TRANSLATION] "affiliation ritual".25
61. Mr. Brown was of the opinion that the prayer recited at the opening of the
meetings of City Council of Ville de Laval could be considered acceptable to
members of various religious faiths.
62. According to him, the expression, [TRANSLATION] "We beseech you, Lord"
refers to a supreme being generally, not only to the supreme being of the
Catholic religion. Even though the expression [TRANSLATION] "Lord" is written
with a capital L, Mr. Brown felt that it was not a proper name.
63. His conclusion from the analysis of the text of the prayer as a whole was
as follows:
[TRANSLATION]
In my opinion, the text is in keeping with generally recognized standards
for meetings of members of a number of communities of different faiths. The
text contains elements common to almost all the communities present in
Quebec, so that the faithful of each of them feel at ease and included in
the supplication.26
64. Mr. Brown said in his report that Canada is a secular state in that there
is no state religion. He indicated, however, that secularism does not mean
the state has officially adopted an atheistic position. On the contrary, the
Canadian Constitution recognizes the supremacy of God.27
65. Questioned as to whether or not City Council would officially adopt an
atheistic position if it decided to repeal the prayer, Mr. Brown said the
following:
[TRANSLATION]
Not necessarily.
Not necessarily? (Counsel for the Commission)
Not necessarily. Not yes, not—not either yes or no, without knowing the
circumstances in which Council would adopt such an idea.28
66. Like Mr. Baril and Mr. Brown, Ms. Lefebvre acknowledge that the wording of
the prayer can be suitable for the various Christian denominations, faiths
or churches, as well as for Abrahamic monotheistic religions such as Judaism
and Islam.
67. Given that the traditional words [TRANSLATION] "Lord", [TRANSLATION]
"wisdom" and [TRANSLATION] “grace” can be interpreted in a non-traditional
manner, in light of the New Age spiritual trend, Ms. Lefebvre was of the
opinion that the prayer could be suitable for people of Buddhist, Hindu and
Sikh religions.
68. Ms. Lefebvre formulated her conclusion as follows in her report:
[TRANSLATION]
To conclude, I believe that the prayer recited at the meetings of City
Council of Ville de Laval can be acceptable to those who belong to a number
of religions, spiritualities and religious schools of thought. It can also
win the respect or vague acceptance of people "without religion", who are
more or less relativistic or agnostic, or refuse to belong to a single
religion, such as people of East Asian origin.29
69. After establishing that a prayer is, in essence, a rite or a religious
ritual, Mr. Baril then explained, referring to the work by author Jean
Maisonneuve, that rituals fill two functions, including that of defining
and reinforcing people's affiliation with a group. In the ritual,
[TRANSLATION] "individuals closely tied to one another reaffirm together
their common values".30 In his report, Mr. Baril stated the following:
[TRANSLATION]
The role of ritual is less to have spiritual entities intervene, as is the
case in a formal religious ceremony, than to define a unity of thought and
affiliation among the individuals present.
A rite therefore calls on our mechanisms of affiliation from the cognitive,
emotional, behavioural and belief standpoints simultaneously.31
70. According to Mr. Baril, imposing this type of ritual on people who do not
share the related values and beliefs causes them major unease, which results
in a feeling of exclusion. [TRANSLATION] "These people inevitably feel
excluded from the group as if they were not in their place".32 Mr. Baril
wrote the following in his report:
[TRANSLATION]
Hence, just seeing and hearing the expression of the ritual can be considered
participation, since the functions of affiliation and identity are involved;
people who do not share the values or the meaning must then dissociate
themselves by force from what their intellect sees, hears and perceives. It
is therefore impossible to ask people, other than simple observers in
passing, to pretend they do not hear what is said or do not see what occurs
when an affiliation ritual unfolds in their presence, and even more so when
the ritual is performed by people representing them at the head of the
group, who are elected municipal officials, as in the case in dispute. …
The fact that non-believers have no specific religious ritual makes the
imposition of any religious ritual neither easier nor more acceptable.33
71. Furthermore, according to Mr. Baril, people who express their dissent by
not taking part in the ritual may arouse in certain participants emotional
reactions of hostility, or even aggressiveness toward them.
72. Mr. Baril also stressed that, in his opinion, the fact that the prayer was
recited in a civic setting in no way changes its nature or weakens its
religious meaning. He gave a number of examples in support of his comments:
prayers in school—a public institution—and the fact that some Muslims pray
in the street.
73. According to Ms. Lefebvre, a simple prayer cannot be considered a religious
ritual as it is not sufficiently elaborate. In her report, Ms. Lefebvre
cited excerpts from the work of author Jean Maisonneuve, who characterizes
a rite as follows:
[TRANSLATION]
The term "rite" is relatively commonplace. Etymologically, it comes from the
Latin ritus, which designates a culture or religious ceremony, but also,
more broadly, a practice or custom …
Rituals may be religious (such as Mass or the Sabbath), secular (such as
protocol or the oath of jurors), collective (such as national or family
holidays) or private (such as personal prayer or certain physical rites);
others simply involve our daily lives (such as greetings, politeness …).34
2. The questions in dispute
74. The Court must rule on the following questions:
1- Does the prayer recited at the opening of public sittings of the City
Council of Ville de Laval interfere with the right to the equal exercise
and recognition of Ms. Payette's freedom of religion and conscience, as
protected by sections 3 and 10 of the Charter of human rights and freedoms?
2- If so, can that interference with freedom of religion and conscience per
se be justified under section 9.1 of the Charter of human rights and
freedoms?
3- If not, what remedy must be granted?
75. Although section 10 is not directly subject to section 9.1 of the Charter
of human rights and freedoms, that justification clause applies indirectly.
In contrast to the Canadian Charter, which provides, in section 15, for a
general protection for equality, the right to equality under section 10 of
the Charter of human rights and freedoms must be articulated in combination
with one or more of the other rights and freedoms provided for. Approaching
the question from the standpoint of section 10, we must, in a case where
there is interference with a right provided for in sections 1 to 9,
determine whether the interference can be justified under section 9.1.
76. The Supreme Court established this principle in 1988 in Devine and Ford.35
In Devine, the Court wrote the following:
While it is true that s. 9.1 does not apply to the principle of equality
enshrined in s. 10, it does apply to the guarantee of free expression
enshrined in s. 3. Whenever it is alleged that a distinction on a ground
prohibited by s. 10 has the effect of impairing or nullifying a right under
s. 3, the scope of s. 3 must still be determined in light of s. 9.1. Where,
as here, s. 9.1 operates to limit the scope of freedom of expression
guaranteed under s. 3, s. 10 cannot be invoked to circumvent those reasonable
limits and to substitute an absolute guarantee of free expression. On the
other hand, having specified the scope of free expression, s. 9.1 cannot be
invoked to justify a limit upon equal recognition and exercise of the right
guaranteed by s. 3. Here, sections 52 and 57 do create a distinction based
on language of use but do not have the effect of impairing or nullifying
rights guaranteed under s. 3.36
3. The applicable law
3.1 The right to equality provided for in section 10 of the Charter
of human rights and freedoms
77. Section 10 of the Charter of human rights and freedoms provides for any
person's right to full and equal recognition and exercise of his or her
rights and freedoms enshrined in the Charter of human rights and freedoms.
It stipulates the following:
Every person has a right to full and equal recognition and exercise of his
human rights and freedoms, without distinction, exclusion or preference
based on race, colour, sex, pregnancy, sexual orientation, civil status, age
except as provided by law, religion, political convictions, language, ethnic
or national origin, social condition, a handicap or the use of any means to
palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has
the effect of nullifying or impairing such right.37
78. The components of the notion of discrimination provided for in section 10
of the Charter of human rights and freedoms have been reaffirmed on several
occasions, particularly by the Supreme Court of Canada.38 There is
discrimination when there exists:
1- a distinction, exclusion or preference;
2- based on one of the grounds listed in section 10;
3- the effect of which nullifies or impairs the full and equal exercise of a
person's rights and freedoms.
79. As for the burden of proof, the Supreme Court of Canada has reiterated on a
number of occasions that proof of discrimination alleged pursuant to the
Charter of human rights and freedoms can be established prima facie. In
Ville de Montreal, which concerned, in particular, a dispute over a refusal
to hire, based on medical standards of a regulatory nature,
L'Heureux-Dube J. indicated the following:
The first step, set out in s. 10, attempts to eliminate discrimination and
requires that the applicant produce prima facie evidence of the
discrimination. At this stage, the burden on the applicant is limited to
showing prejudice and its connection to a prohibited ground of
discrimination.39 [Emphasis added.]
80. Furthermore, a difference in treatment need not be linked directly to the
ground invoked, since a prime facie neutral measure can have the effect of
causing a prejudice. According to this principle, the applicant must
establish that the purpose or effect of the contested measure violates
section 10 of the Charter of human rights and freedoms.
81. That is what the Supreme Court of Canada indicated, particularly in 1994,40
in a dispute in which Jewish teachers contested the school calendar, which
forced them to work on a religious holiday. Although the Court concluded
that the calendar was neutral or non-discriminatory prime facie, since it
contemplated no religious objective, it had the effect of causing prejudice
to Jewish teachers.
82. In Eaton,41 in 1993, the Court concluded that, even though the complainant's
employer had no intention to discriminate, the requirement of working two
Sundays out of four had the effect of establishing an unfair condition in
her regard because it compelled her to act contrary to her religious
beliefs, whereas the condition did not have the same effect on the employees
as a whole.
83. In 1999, in Law,42 the Supreme Court of Canada added the criterion of the
violation of human dignity as a component of the violation of the right to
equality provided for in section 15 of the Canadian Charter. What about
proof of a discriminatory violation alleged under section 10 of the Charter
of human rights and freedoms?
84. The preamble to the Charter of human rights and freedoms provides that
"respect for the dignity of the human being and recognition of his rights
and freedoms constitute the foundation of justice and peace" and that "all
human beings are equal in worth and dignity". Thus, it is acknowledged that,
in addition to constituting a right specifically protected under section 4
of the Charter of human rights and freedoms,43 dignity is a value underlying
the rights and freedoms guaranteed by the Charter. Hence, if a violation of
a right or freedom is proven, it almost always violates human dignity.
85. Bear in mind, first of all, that the wording of section 4 of the Charter of
human rights and freedoms and the concept of dignity came in the wake of the
development of human rights internationally. A brief review of international
law shows that the notion of dignity is much more than a special fundamental
right. The notion of dignity is a pivotal principle in the various
international texts protecting human rights and freedoms. It is a genuine
principle, a value underlying the Charter of human rights and freedoms, and
all the fundamental rights and freedoms protected by the Charter can be
interpreted on the basis of it.
86. In 1948, the Universal Declaration of Human Rights44 laid down in its
preamble the concept of dignity inherent in all members of the human family.
In addition, the first article of the Declaration stipulates that "[a]ll
human beings are born free and equal in dignity and rights". The
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights45 also proclaim the
importance of human dignity in their preambles.
87. Although the principles laid down by the Supreme Court in terms of equal
rights under the Canadian Charter are sources of inspiration and
interpretation for the right to equality provided for in quasi-
constitutional laws, including the Charter of human rights and freedoms,
the scope and structure in which that protection is framed are different
from those of the Canadian Charter from several standpoints.
88. In Andrews,46 which dealt with section 15 of the Canadian Charter,
McIntyre J. established that that constitutional provision required a
different interpretation from that of the laws governing human rights, since
the latter prohibit discrimination absolutely. Furthermore, when the latter
provide for a ground of defence and an exception, it is also in absolute
terms that discrimination is allowed.
89. In fact, Meiorin,47 which was rendered by the Supreme Court of Canada
pursuant to the British Columbia Human Rights Code,48 confirmed that the
words of McIntyre J. in Andrews still apply.
90. In Meiorin, which was rendered some six months after Law49 in a quasi-
constitutional context, the Supreme Court of Canada, under the pen of
McLachlin J., did not feel it was worthwhile to add the criterion of the
violation of human dignity as a component of discrimination in a case of
alleged discrimination under the British Columbia Human Rights Code.50 That
approach was subsequently confirmed in Grismer51 in 1999. The same
observation was made in Ville de Montreal52 in 2000 and in Maksteel53 in
2003, rendered by the Supreme Court of Canada under, respectively, sections
10 and 18.2 of the Charter of human rights and freedoms.
91. Lastly, the analysis proposed by Iacobucci J. incorporating the violation
of dignity in Law was developed in the context of a legislative contestation
concerning the establishment, by the government, of financial aid programs
the objective and effects of which were alleged to be discriminatory. That
is not the case here. The adoption of a regulatory standard essentially
governing certain internal procedures of the state administration and,
a fortiori, when adopted in the exercise of delegated powers, surely does
not involve the same approach as the contestation of a law concerning
policies of a social and economic nature.
92. Except in rare cases,54 Canadian jurisprudence considers the criterion of
the violation of dignity inappropriate and inapplicable when it is a question
of applying a provincial anti-discrimination standard.
93. Given all these elements, the criterion of the violation of human dignity
is not, in this case, a component of discrimination under section 10 of the
Charter of human rights and freedoms.
3.2 Freedom of religion and conscience
o International law
94. The International Covenant on Civil and Political Rights55 deals
specifically with freedom of conscience and religion. Article 18 reads
as follows:
1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion or
belief of his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to
have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms
of others.
4. The states Parties to the present Covenant undertake to have respect for
the liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.
95. In 1993, the United Nations' Committee on Human Rights adopted General
Observation No. 22,56 which concerns the right to freedom of conscience and
religion stipulated in Article 18 of the Covenant. In its observations, the
Committee decreed that freedom of belief and religion, as protected by that
article, includes the right to have theistic or atheist beliefs, as well as
the right to profess no religion or belief.57
96. The Committee also determined that the terms "belief" and “religion” should
be construed broadly, so that the scope of Article 18 is not limited in its
application to traditional religions and beliefs. It indicated that Article
18 protects believers of newly established religions, as well as religious
minorities that may be suppressed by a predominant religious community.58
97. Furthermore, the Committee believed that, pursuant to Article 18 of the
Covenant, no one can be compelled to reveal his or her thoughts or to belong
to a religion or hold a belief.59
98. The Committee also pointed out that possible restrictions on the right
protected in Article 18 must apply "… only for those purposes for which they
were prescribed and must be directly related and proportionate to the
specific need on which they are predicated.60
99. In paragraph 9 of its General Observation, the Committee stated that
recognition by a state of a religion as official or traditional must not
result in any impairment of the freedom of conscience and religion of
individuals who do not believe in it, or in any discrimination toward them.61
100. Article 2662 of the International Covenant on Civil and Political Rights
deals more particularly with the prohibition of discrimination, particularly
in regard to religion.
101. In a decision it rendered on November 23, 2004, the Committee ruled that
the fact that Norway taught the Christian religion in school, despite the
possibility of an exemption at the request of parents, was contrary to
articles 18 and 26 of the International Covenant on Civil and Political
Rights.63 The Committee first considered that the instruction was not
objective or neutral, contrary to the protection of Article 18 of the
Covenant. Then, it mentioned that the exemption option provided for—which
parents had to justify—resulted in discrimination toward those who did not
believe in the Christian religion, including the complainants, who were of
humanistic convictions. The Committee ruled in these terms:
The scope of article 18 covers not only protection of traditional religions,
but also philosophies of life, such as those held by the authors.64
102. The Commission also indicated that religious instruction should respect
the convictions of parents and guardians who believe in no religion.65
03. The Declaration on the Elimination of All Forms of Intolerance and of
Discrimination based on Religion or Belief,66 proclaimed by the United
Nations in 1981, is the most comprehensible and elaborate international
instrument concerning freedom of conscience and of religion. It contains
eight articles that, considered together, constitute a general concept that
advocates tolerance and is aimed at preventing discrimination based on
religion or belief.
104. Although the Declaration provides for no implementation mechanism, it
still constitutes an affirmation of principle and an important guideline.
Given the Declaration's non-coercive nature, since it contains no
implementation mechanism, the United Nations Human Rights Commission
created, in 1986, the position of Special Rapporteur. The Special Rapporteur
is mandated to report to the Commission each year on the status of freedom
of religion and belief in one or more countries.
105. Article 1 of the Declaration essentially reiterates the rights provided
for in Article 18 of the International Covenant on Civil and Political
Rights.
106. Article 2 of the Declaration provides for the prohibition of
discrimination on the ground of religion or belief. It also identifies
categories of potential discriminators:
1. No one shall be subject to discrimination by any state, institution,
group of persons, or person on the grounds of religion or other belief.
2. For the purposes of the present Declaration, the expression "intolerance
and discrimination based on religion or belief" means any distinction,
exclusion, restriction or preference based on religion or belief and having
as its purpose or as its effect nullification or impairment of the
recognition, enjoyment or exercise of human rights and fundamental freedoms
on an equal basis.67
107. More specifically, Article 3 of the Declaration provides that
"[d]iscrimination between human being[s] on the grounds of religion or
belief constitutes an affront to human dignity …".68
o Internal law
108. Section 3 of the Quebec Charter of human rights and freedoms provides
that all people are entitled to freedom of religion and freedom of
conscience. That section reads as follows:
3. Every person is the possessor of the fundamental freedoms, including
freedom of conscience, freedom of religion, freedom of opinion, freedom of
expression, freedom of peaceful meeting and freedom of association.69
109. The concept of freedom of religion and conscience has been developed
mainly by the courts under section 2(a) of the Canadian Charter. Those two
provisions are not significantly different in their wording, with the result
that the jurisprudence related to freedom of religion and conscience
elaborated under section 2(a) of the Canadian Charter is very useful in
determining the content and definition of freedom of religion and conscience
as provided for in section 3 of the Charter of human rights and freedoms.
110. Let it be said, first of all, that the Supreme Court of Canada has long
applied an "expansive definition of freedom of religion, which revolves
around the notion of personal choice and individual autonomy and freedom".70
The jurisprudence has also recognized that freedom of religion protects both
belief and non-belief.
111. But before defining the content of freedom of conscience and of religion,
we must ask what is encompassed by the concept of belief related to
"religion", provided for in section 3 of the Charter of human rights and
freedoms. In 2004, in Amselem,71 the Supreme Court of Canada broadened the
objective conception adopted by the majority of the Quebec Court of Appeal
by determining that a plaintiff did not have to prove the objective
existence of an obligation or precept related to religion. The Supreme Court
established that only a subjective and personal approach could be compatible
with the purposes and principles underlying freedom of religion and
conscience, which are centred on personal freedom.
112. The concept of freedom of conscience and religion comes into play when a
plaintiff demonstrates that he or she sincerely believes in a religion
-related belief. The applicable criterion is the sincerity of the belief:
It is not necessary to prove that the precept objectively creates an
obligation, but it must be established that the claimant sincerely believes
he or she is under an obligation that follows from the precept. The inquiry
into the sincerity of beliefs must be as limited as possible, since it will
"expose an individual's most personal and private beliefs to public airing
and testing in a judicial or quasi-judicial setting". The sincerity of a
belief is examined on a case-by-case basis and must be supported by
sufficient evidence, which comes mainly from the claimant.72
113. Hence, neither experts nor authorities in religious law, nor the courts,
must replace, through interpretation, the interested party's affirmation of
his or her religious beliefs. The Supreme Court emphasized the importance of
the criterion of personal, non-objective perception:
In my view, the state is in no position to be, nor should it become, the
arbiter of religious dogma. Accordingly, courts should avoid judicially
interpreting and thus determining, either explicitly or implicitly, the
content of a subjective understanding of religious requirement,
"obligation", precept, “commandment”, custom or ritual.
…
An "expert" or an authority on religious law is not the surrogate for an
individual's affirmation of what his or her religious beliefs are. Religious
belief is intensely personal and can easily vary from one individual to
another. 73
114. It is therefore a question of ensuring that the belief invoked is sincere
and that it does not constitute an artifice. It is a question of fact that
depends on the assessment of the credibility of the plaintiff's testimony.74
Furthermore, although Amselem concerned the exercise of a religious
practice, namely, living in a succah, this principle applies equally to the
manifestations and convictions of non-belief.
115. Once the plaintiff has shown that what is at stake is indeed his or her
freedom of religion and conscience, it must be determined whether there is
truly a violation. Hence, the definition and content of that freedom must
be determined.
116. In Big M Drug Mart,75 the Supreme Court for the first time had an
opportunity to define the content of freedom of religion and conscience
under section 2(a) of the Canadian Charter. Speaking on behalf of the Court,
Dickson C.J. ruled in these terms:
The essence of the concept of freedom of religion is the right to entertain
such religious beliefs as a person chooses, the right to declare religious
beliefs openly and without fear of hindrance or reprisal, and the right to
manifest religious belief by worship and practice or by teaching and
dissemination. But the concept means more than that.
Freedom can primarily be characterized by the absence of coercion or
constraint. If a person is compelled by the state or the will of another to
a course of action or inaction which he would not otherwise have chosen, he
is not acting of his own volition and he cannot be said to be truly free.
One of the major purposes of the Charter is to protect, within reason, from
compulsion or restraint. Coercion includes not only such blatant forms of
compulsion as direct commands to act or refrain from acting on pain of
sanction, coercion includes indirect forms of control which determine or
limit alternative courses of conduct available to others. Freedom in a broad
sense embraces both the absence of coercion and constraint, and the right to
manifest beliefs and practices. Freedom means that, subject to such
limitations as are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others, no one is to be
forced to act in a way contrary to his beliefs or his conscience.76
[Emphasis added.]
117. In Big M Drug Mart, Dickson C.J. recognized the existence of two
components of freedom of religion and conscience. The first is the freedom
to have beliefs and to profess them openly, and the second corresponds to
the right not to be coerced to belong to a particular religion or to act
contrary to one's convictions.
118. Since then, the jurisprudence has constantly applied the two components of
freedom of religion and conscience.77
119. LeBel J., in Lafontaine (Village), reiterated these two principles as
follows:
[t]he concept … includes, a positive aspect, that is, the right to believe
or not believe what one chooses, to declare one's beliefs openly, and to
practice one's religion in accordance with its tenets. … Freedom of religion
also has a negative aspect, that is, the right not to be compelled to belong
to a particular religion or to act in a manner contrary to one's religious
beliefs.78
120. Professor Jose Woehrling explains, in terms of [TRANSLATION] "positive and
negative" aspects, the two components of freedom of religion described by
the Supreme Court in Big M Drug Mart:
[TRANSLATION]
… the positive component corresponds to the freedom to have religious
beliefs, to profess them openly by practising them, by worship and by their
teaching and propagation; the negative content corresponds to the right not
to be forced, directly or indirectly, to embrace a conception of religion or
to act contrary to one's beliefs or conscience.79 [Emphasis added.]
121. Dickson C.J. indicated, in Big M Drug Mart, that the negative aspect of
that freedom also encompasses the refusal to observe religious practices:
Religious belief and practice are historically prototypical and, in many
ways, paradigmatic of conscientiously held beliefs and manifestations and
are therefore protected by the Charter. Equally protected, and for the same
reasons, are expressions and manifestations of religious non-belief and
refusals to participate in religious practice.80 [Emphasis added.]
122. The jurisprudence has also established that the fundamental freedom of
religion and conscience places an obligation of neutrality on the state.
123. In Big M Drug Mart, Dickson C.J. confirmed that freedom of religion and
conscience involves not only the freedom to exercise that right, but also
the obligation, for the state, not to coerce people to profess a religious
faith:
For the present case it is sufficient in my opinion to say that whatever
else freedom of conscience and religion may mean, it must at the very least
mean this: government may not coerce individuals to affirm a specific
religious belief or to manifest a specific religious practice for a
sectarian purpose.81 [Emphasis added.]
124. In Lafontaine (Village),82 LeBel J. stated that the fundamental freedom of
religion imposes on the state and public authorities "… in relation to all
religions and citizens, a duty of religious neutrality that assures
individual or collective tolerance, thereby safeguarding the dignity of
every individual and ensuring equality for all".83
125. LeBel J. examined the historical evolution of this concept of neutrality
of the state in religious matters. He explained as follows the historical
experience that made it possible to dissolve the links between church
and state:
… Thus, at the time of Confederation in 1867, the concept of religious
neutrality implied primarily respect for Christian denominations. One
illustration of this can be seen in the constitutional rules relating to
educational rights originally found, inter alia, in s. 93 of the
Constitution Act, 1967.
Since then, the appearance and growing influence of new philosophical,
political and legal theories on the organization and bases of civil society
have gradually led to a dissociation of the functions of church and state;
…. Although it has not excluded religions and churches from the realm of
public debate, this evolution has led us to consider the practice of
religion and the choices it implies to relate more to individuals' private
lives or to voluntary associations …84
126. Hence, the non-neutrality of the state could create inequality of freedom
of religion and conscience in society to the extent that it binds the
populace to a sectarian ideal. Dickson C.J. said the following in Big M.
Drug Mart:
To the extent that it binds all to a sectarian Christian ideal, the Lord's
Day Act works a form of coercion inimical to the spirit of the Charter and
the dignity of all non-Christians. In proclaiming the standards of the
Christian faith, the Act creates a climate hostile to, and gives the
appearance of discrimination against, non-Christian Canadians.85
127. To illustrate this principle, the Court of Appeal for Ontario concluded,
in Freitag,86 that the recitation of a Christian prayer, namely, the Lord's
Prayer, by a city council at the opening of a public meeting violated
section 2(a) of the Canadian Charter, since the purpose of the practice was
to impose a Christian moral tone on the council's deliberations.
128. In Chamberlain, in which the Supreme Court of Canada had to determine
whether the requirements of secularism and non-sectarianism prevented the
school board from making decisions according to religious considerations,
McLachlin C.J. said the following:
The school board is the elected proxy of the collective local community,
made up as it typically is of diverse subcommunities. The requirement of
secularism means that the school board must consider the interests of all
its constituents and not permit itself to act as the proxy of a particular
religious view held by some members of the community, even if that group
holds the majority of seats on the board.87
129. When freedom of religion is involved, the tribunal must determine whether
there is a non-trivial or substantial impediment to exercising that right,
which constitutes a violation of freedom of religion guaranteed by the
Charter of human rights and freedoms.
130. In Edwards Books, the Supreme Court of Canada indicated that legislative
or administrative action does not violate freedom of religion and conscience
if "the burden is trivial or insubstantial". 88
131. In Amselem, the Supreme Court of Canada indicated that the context of each
case must be examined in order to determine the magnitude of the interference:
It consequently suffices that a claimant show that the impugned contractual
or legislative provision (or conduct) interferes with his or her ability to
act in accordance with his or her religious beliefs in a manner that is more
than trivial or insubstantial. The question then becomes: what does this mean?
60. At this stage, as a general matter, one can do no more than say that the
context of each case must be examined to ascertain whether the interference
is more than trivial or insubstantial. But it is important to observe what
examining that context involves. …
62. … Conduct which would potentially cause harm to or interference with the
rights of others would not automatically be protected. The ultimate
protection of any particular Charter right must be measured in relation to
other rights and with a view to the underlying context in which the apparent
conflict arises.89
132. In Multani, the Supreme Court of Canada said the following on that point
in regard to the facts in the case:
Finally, the interference with Gurbaj Singh's freedom of religion is neither
trivial nor insignificant. Forced to choose between leaving his kirpan at
home and leaving the public school system, Gurbaj Singh decided to follow
his religious convictions and is now attending a private school. The
prohibition against wearing his kirpan to school has therefore deprived
him of his right to attend a public school.
Thus, there can be no doubt that the council of commissioners' decision
prohibiting Gurbaj Singh from wearing his kirpan to Sainte-Catherine-Laboure
school infringes his freedom of religion. This limit must therefore be
justified under s. 1 of the Canadian Charter.90
133. The right to freedom of conscience and religion provided for in the
Charter of human rights and freedoms is not absolute. In a case where it is
established that a measure violates freedom of religion or conscience, the
measure can be justified under the second paragraph of section 9.1 of the
Charter of human rights and freedoms, which stipulates that the law can
impose certain limits on fundamental rights and freedoms:
134. Section 9.1 reads as follows:
In exercising his fundamental freedoms and rights, a person shall maintain a
proper regard for democratic values, public order and the general well-being
of the citizens of Quebec.
In this respect, the scope of the freedoms and rights, and limits to their
exercise, may be fixed by law.
135. Since the Commission is contesting, in particular, section 12 of by-law
L-5480, which provides for the recitation of a prayer, it is the test of the
second paragraph of section 9.1 that applies.
136. The Supreme Court of Canada had an opportunity in Ford91to examine the
scope of that provision. As regards the relations of citizens with the
state, it found the provision to have the same nature as the first section
of the Canadian Charter.92 The interpretation therefore adopted by the Court
has prevailed since then, and the criteria developed in Oakes93 are
essential, namely, the importance of the legislative objective pursued,
rationality, proportionality and minimal impairment.
137. The defendant must prove, according to the preponderance of probabilities,
that the violation is reasonable and that its justification can be
demonstrated in the framework of a democratic society. To this end, it must
meet two requirements. First, the legislative objective pursued must be
sufficiently important to justify the restriction on freedom of religion.
Second, the means chosen by the state authority must be proportional to the
objective in question. Three criteria are used for the second part of the
analysis: (1) Is there a rational connection between the measure and the
legislative objective? (2) Does the measure impair the guaranteed right as
little as possible? (3) Is there proportionality between the effect of the
measure and its objective?
138. Hence, the defendant bears the burden of demonstrating that:
1. the recitation of the prayer at the opening of a sitting of City Council
is imposed for an objective sufficiently important to justify the
suppression of freedom of religion and conscience;
2. the recitation of the prayer is rationally connected to the achievement
of that objective;
3. the freedom of religion is impaired as little as possible and in
proportion to the objective pursued.
139. The Supreme Court of Canada established in Oakes that, at a minimum, an
objective must be related to concerns that are pressing and substantial in
order to be characterized as sufficiently important. However, in Big M Drug
Mart,94 the Supreme Court of Canada concluded that an objective contrary to
the rights and freedoms protected by the Canadian Charter cannot be
justified under section 1 of that Charter.
140. In that judgment, the Supreme Court of Canada indicated that there were
two ways to characterize the purpose of a law, i.e. the Lord's Day Act:
There are obviously two possible ways to characterize the purpose of Lord's
Day legislation, the one religious, namely securing public observance of the
Christian institution of the Sabbath and the other secular, namely providing
a uniform day of rest from labour. It is undoubtedly true that both elements
may be present in any given enactment, indeed it is almost inevitable that
they will be, considering that such laws combine a prohibition of ordinary
employment for one day out of seven with a specification that this day of
rest shall be the Christian Sabbath—Sunday. …95 [Emphasis added.]
141. The Supreme Court determined that the first criterion to be applied is
that of the purpose of the law involved, and that its effects must be
considered if the law examined meets the first criterion:
Thus, if a law with a valid purpose interferes by its impact, with rights or
freedoms, a litigant could still argue the effects of the legislation as a
means to defeat its applicability and possibly its validity. In short, the
effects test will only be necessary to defeat legislation with a valid
purpose; effects can never be relied upon to save legislation with an
invalid purpose.96
142. The Supreme Court of Canada concluded in that ruling that the limitative
clause provided for in the first section of the Canadian Charter did not
apply to a law whose objective was essentially religious, namely, the
observance of the Sabbath as a Christian institution. Hence, the Lord's Day
Act was found invalid on the ground that its purpose, which was religious in
nature, was not permitted.
143. Hence, the Supreme Court concluded that it is not necessary to determine
whether the secular effect of the law involved, i.e. a day of rest, is
sufficient or whether such an effect could ever be important.
144. In a case where the purpose of the law is not valid, it is not necessary
to further examine its effects, since its invalidity has been proven:
If the acknowledged purpose of the Lord's Day Act, namely, the compulsion of
sabbatical observance, offends freedom of religion, it is then unnecessary
to consider the actual impact of Sunday closing upon religious freedom. Even
if such effects were found inoffensive, as the Attorney General of Alberta
urges, this could not save legislation whose purpose has been found to
violate the Charter's guarantees. In any event, I would find it difficult to
conceive of legislation with an unconstitutional purpose, where the effects
would not also be unconstitutional.97 [Emphasis added.]
145. Dickson C.J. reiterated the importance of not imposing, by means of a
legislative measure, religious values contrary to respect for the equality
of all:
To the extent that it binds all to a sectarian Christian ideal, the Lord's
Day Act works a form of coercion inimical to the spirit of the Charter and
the dignity of all non-Christians. In proclaiming the standards of the
Christian faith, the Act creates a climate hostile to, and gives the
appearance of discrimination against, non-Christian Canadians. It takes
religious values rooted in Christian morality and, using the force of the
state, translates them into a positive law binding on believers and
non-believers alike. The theological content of the legislation remains as
a subtle and constant reminder to religious minorities within the country
of their differences with, and alienation from, the dominant religious
culture.98 [Emphasis added.]
146. In Freitag, the Court of Appeal for Ontario concluded similarly:
As the purpose of the practice of the Town Council in opening its meetings
with the recitation of the Lord's Prayer is to impose a Christian moral tone
and therefore the purpose itself infringes the appellant's Charter right,
the practice cannot be justified under s. 1.99
147. As for the criterion of proportionality, the Supreme Court indicated, in
Oakes, that it can vary according to the circumstances, and that the courts
must, in each case, weigh the interests of society and those of individuals
and groups. First of all, the measures adopted must be carefully designed
to achieve the objective in question. They must not be arbitrary,
inequitable or founded on irrational considerations. They must have a
rational connection with the objective in question.
148. If there is a rational connection, then secondly, it must be established
that the means chosen is likely to impair the right to freedom as little as
possible. The second stage of the analysis of proportionality is often the
heart of the debate aimed at determining whether the violation of a
Charter-protected right or freedom is justified. The restriction that must
impair the violated right or freedom as little as possible must not
necessarily be the least intrusive solution.100
149. Moreover, the Supreme Court reiterated in Multani the correspondence
between the notion of reasonable accommodation and the analysis of
proportionality. There may be sufficient justification if there is
reasonable accommodation. The notion of "reasonable accommodation" is
analogous in a way to the notion of "reasonable limits". The Supreme Court
said the following:
In my view, this correspondence between the legal principles is logical.
In relation to discrimination, the courts have held that there is a duty to
make reasonable accommodation for individuals who are adversely affected by
a policy or rule that is neutral on its face, and that this duty extends
only to the point at which it causes undue hardship to the party who must
perform it. Although it is not necessary to review all the cases on the
subject, the analogy with the duty of reasonable accommodation seems to me
to be helpful to explain the burden resulting from the minimal impairment
test with respect to a particular individual, as in the case at bar.101
4. The application of the law to the facts as adduced
150. The freedom of conscience and religion protected under section 3 of the
Charter of human rights and freedoms implies that Ms. Payette is entitled
not to be forced to act contrary to her beliefs and conscience, or be
subjected to a religious practice in which she does not believe. As part
of the exercise of public duties, the state and the administration have an
obligation of neutrality, that is, an obligation not to give preference to
or promote one religion over another, or to promote religious convictions
over atheistic or agnostic convictions.
151. In matters of the protection of the right to equality provided for in
section 10 of the Charter of human rights and freedoms, treatment that
causes a distinction, exclusion or preference based on a protected ground,
i.e. religion, in the exercise or recognition of the right to freedom of
conscience and religion impairs the right to equality, inasmuch as a
prejudice results.
152. In the case at bar, the practice of reciting a prayer at the public
sittings of City Council of Ville de Laval impairs Ms. Payette's right to
the recognition and exercise of her convictions as a non-believer, and the
right not to be forced to take part in a religious observance in which she
does not believe and to which she does not adhere, according to section 3
de la Charter of human rights and freedoms. Given the religious objective of
such a practice, the impairment cannot be justified pursuant to section 9.1
of the Charter of human rights and freedoms.
153. The recitation of the prayer has the effect of excluding Ms. Payette based
on religion. That practice impairs her right to equality in the recognition
and exercise of her freedom of religion and conscience, since her undesired
participation in that practice and the resulting effect of making her
conspicuous stigmatize her compared with the dominant trend and the majority,
in violation of section 10 of the Charter of human rights and freedoms.
154. In accordance with the Canadian jurisprudence developed mainly under
section 2(a) of the Canadian Charter, the protection related to freedom of
religion and freedom of conscience provided for in section 3 of the Charter
of human rights and freedoms applies equally to religious manifestations of
non-belief, since the fact that non-believers have no religious practice
does not make it more acceptable to impose any religious practice on them.
155. That protection extends to Ms. Payette's refusal to observe the religious
practice of a prayer in a public sitting of City Council. Dickson C.J., in
Big M. Drug Mart, highlighted the close correlation between the concepts of
religion, conscience and belief:
Religious belief and practice are historically prototypical and, in many
ways, paradigmatic of conscientiously held beliefs and manifestations and
are therefore protected by the Charter. Equally protected, and for the same
reasons, are expressions and manifestations of religious non-belief and
refusals to participate in religious practice.102 [Emphasis added.]
156. The fact that the fully equal exercise and recognition of freedom of
religion and conscience is alleged at the request of a non-believer—as
opposed to a believer—does not create a climate of enmity in regard to
religion in general, or make the whole of the public sphere atheistic.
On the contrary, all convictions and all beliefs are protected.
157. Although the Supreme Court of Canada, in Big M Drug Mart, invalidated the
Lord's Day Act, considering its religious objectives, it pointed out that
the Court's grounds were not in any way opposed to the observance of Sunday
as a religious day:
I would like to stress that nothing in these reasons should be read as
suggesting any opposition to Sunday being spent as a religious day; quite
the contrary. It is recognized that for a great number of Canadians, Sunday
is the day when their souls rest in God, when the spiritual takes priority
over the material, a day which, to them, gives security and meaning because
it is linked to Creation and the Creator. It is a day which brings a
balanced perspective to life, an opportunity for man to be in communion with
man and with God. In my view, however, as I read the Charter, it mandates
that the legislative preservation of a Sunday day of rest should be secular,
the diversity of belief and non-belief, the diverse socio-cultural
backgrounds of Canadians make it constitutionally incompetent for the
federal Parliament to provide legislative preference for any one religion at
the expense of those of another religious persuasion.103
158. When the state and the administration are involved, only the obligation of
neutrality is able to guarantee the equality of all. In Lafontaine (Village),
LeBel J. reviewed the historical evolution of the concept of neutrality of
the state and its decisive role in the preservation of equality for all:
The duty of neutrality appeared at the end of a long evolutionary process
that is part of the history of many countries that now share Western
democratic traditions. Canada's history provides one example of this
experience, which made it possible for the ties between church and state to
be loosened, if not dissolved. There were, of course, periods when there was
a close union of ecclesiastical and secular authorities in Canada. …
Thus, at the time of Confederation in 1867, the concept of religious
neutrality implied primarily respect for Christian denominations. One
illustration of this can be seen in the constitutional rules relating to
educational rights originally found, inter alia, in s. 93 of the
Constitution Act, 1867.
Since then, the appearance and growing influence of new philosophical,
political and legal theories on the organization and bases of civil society
have gradually led to a dissociation of the functions of church and state;
Canada's demographic evolution has also had an impact on this process, as
have the urbanization and industrialization of the country. Although it has
not excluded religions and churches from the realm of public debate, this
evolution has led us to consider the practice of religion and the choices it
implies to relate more to individuals' private lives or to voluntary
associations … Our Court has recognized this aspect of freedom of religion
in its decisions, although it has in so doing not disregarded the various
sources of our country's historical heritage. The concept of neutrality
allows churches and their members to play an important role in the public
space where societal debates take place, while the state acts as an
essentially neutral intermediary in relations between the various
denominations and between those denominations and civil society. …
In this context, it is no longer the state's place to give active support to
any one particular religion, if only to avoid interfering in the religious
practices of the religion's members. The state must respect a variety of
faiths whose values are not always easily reconciled. As this Court observed
in Big M, supra, "[w]hat may appear good and true to a majoritarian
religious group, or to the state acting at their behest, may not, for
religious reasons, be imposed upon citizens who take a contrary view" …104
[Emphasis added.]
Freedom of religion and conscience
159. In the case at bar, the evidence shows that the practice of reciting the
prayer provided for in section 12 of by-law L-5480 at the opening of the
sittings of City Council of Ville de Laval is essentially religious in nature.
160. In contrast to what the Ville de Laval claims, the recitation of the
prayer in a civic setting does not change its nature and in no way
diminishes its religious meaning.
161. Section 12 of by-law L-5480, which concerns the internal procedures of
City Council of Ville de Laval, is clear on that subject. It provides that,
when all the people present have risen, the president can then recite the
prayer.
162. Although the evidence demonstrates that the municipal jurisdiction of
Ville de Laval is essentially secular, the practice of reciting the prayer
and section 12 of by-law L-5480, which provides for the opening of the
sittings of Council, refer to an essentially religious procedure, practice
and text in the public sphere.
163. More particularly, the evidence shows that the use of specifically
religious words and expressions such as [TRANSLATION] "Lord", [TRANSLATION]
"we beseech you", [TRANSLATION] “grant us your grace” and [TRANSLATION]
"Amen" mean that the text of the prayer constitutes a call and supplication
to a higher power,105 aimed at the intervention of a supernatural force.106
164. Although the experts do not agree on whether or not it is a religious
[TRANSLATION] "rite" or [TRANSLATION] “ritual”, they all agree that the text
is religious in nature. The recitation of the prayer by City Council is, in
and of itself, a religious practice during a public sitting of City Council.
165. Moreover, the evidence shows that the majority of the Council members and
a number of the members of the public make the sign of the cross at the end
of the prayer. Mtre. Angelopoulos also testified that, when he recited the
prayer as chair of Council, he made the sign of the cross at the end of the
prayer.
166. The wording of the usual prayer, which has been recited for more than 40
years, was confirmed by the members of Council on April 3, 2006, at the time
of the trial. Several of the [TRANSLATION] "Whereas" clauses justifying the
adoption of the wording of the prayer were aimed at continuing the tradition
that, as the evidence showed, had its source in the Christian religion.
167. That tradition, as Mr. Baril testified,107 dates back to a time, more
specifically before the advent of the Charters, when there was no separation
between the civil and the religious spheres, as there is today. Thus, the
religious connotation of that tradition has not been lost as the tradition
has continued, since nothing has changed either in the practice or in the text.
168. Ms. Lefebvre, as expert witness for Ville de Laval, also indicated in her
testimony that the prayer recited at the meeting of City Council is inspired
by a custom originating in a religious heritage.
169. Ms. Payette opposes the recitation of such a prayer on the ground that it
interferes with her convictions and manifestations of non-belief. Therefore,
Ms. Payette must, first of all, establish that her convictions as a
non-believer are sincere.
170. The Supreme Court of Canada established, in Amselem, that a person's
freedom of religion and conscience require proof of the sincerity of the
beliefs—or convictions—invoked. Although that ruling concerns the exercise
of a religious practice, namely, living in a succah, the principle applies
equally to the manifestations and convictions of non-belief.
171. According to the principles established by the Supreme Court of Canada,
"[t]he inquiry into the sincerity of beliefs must be as limited as
possible"108 since it exposes an individual's most personal and private
beliefs. Hence, a case-by-case examination must be conducted that must "be
supported by sufficient evidence, provided mainly from the claimant".109
172. In Multani,110 the Supreme Court of Canada pointed out that, even if other
people of the Sikh religion agreed to wear a replica of the kirpan, made of
plastic or wood, that is not relevant when determining the sincere belief of
the claimant as regards the obligation to carry a metal kirpan. The Supreme
Court made the same observation in Amselem, where it considered that the
construction of a common succah did not respect the freedom of religion of
those whose precept required the construction of an individual succah.
173. In this case, the evidence adduced established that Ms. Payette's
convictions and manifestations of non-belief are sincere.
174. In her testimony, Ms. Payette mentioned that she has no belief in any
superior being and that she is an atheist. Therefore, the recitation of a
prayer with a religious and Christian connotation at public sittings of City
Council constituted a practice with which she was not comfortable, since it
did not in any way respect her convictions when the prayer was recited as
part of a City Council meeting, nor would it, according to her, respect
[TRANSLATION] "the religious convictions … of other religious communities
present".111
175. Ms. Payette also testified that she should not be compelled to disclose in
public her personal convictions as a non-believer, since those convictions
are, to her mind, [TRANSLATION] "something totally private". According to
her testimony, that was what she was compelled to do by remaining seated
when the prayer was recited, while the people around her were standing.
176. Ms. Payette's convictions are sincere and credible, and they are put
forward in good faith. No contradiction is apparent in her testimony that
would vitiate its credibility.
177. Ms. Payette's membership in the Mouvement laïque quebecois and her
knowledge of the group's involvement in complaints concerning the recitation
of prayers in other municipal councils do not make her testimony less
sincere as regards her convictions.
178. From that standpoint, LeBel J., of the Supreme Court of Canada, in
Lafontaine (Village), when determining the content of the positive aspect of
freedom of religion and conscience, said the following:
This positive aspect also includes the right to proselytize, that is, to
teach and disseminate one's beliefs.112
179. In his report, Mr. Baril indicated that, even though the text of the
prayer is ecumenical in the Christian sense of the term, the word
[TRANSLATION] "God" in the prayer cannot [TRANSLATION] “win the approval of
believers of no religious denomination, agnostics, free thinkers,
non-believers and atheists, a group representing 20% of the population".113
180. Ms. Lefevbre was of the opinion that the prayer can be the object of
respect and vague adherence by people [TRANSLATION] "without religion" who
are more or less relativists or agnostics, or who refuse to be affiliated
with a single religion, such as people of East Asian origin."114
181. However, as we mentioned previously in the chapter on the applicable law,
the examination of Ms. Payette's sincerity does not involve others'
perception of her convictions, but what Ms. Payette herself subjectively
considers to be her own convictions.
182. Neither religious law experts nor authorities, nor the courts, can be
surrogates, through interpretation, for an interested party's affirmation of
his or her religious beliefs. The Supreme Court, in Amselem, stressed the
importance of the criterion of personal, non-objective perception:
An "expert" or an authority on religious law is not the surrogate for an
individual's affirmation of what his or her religious beliefs are.
Religious belief is intensely personal and can easily vary from one
individual to another.115
Impairment of the right to equality
183. Does the practice of City Council of Ville de Laval of reciting the prayer,
provided for in section 12 of by-law L-5480, impair Ms. Payette's right to
full and equal exercise and recognition of freedom of religion and conscience?
184. The established principles for the state's obligation of religious
neutrality can serve to clarify the matter from the standpoint of the right
to equality. The state's obligation not to promote one religion over another
or belief over non-belief guarantees the preservation of the equality of all
citizens and religions.
185. The City Council of Ville de Laval cannot advance religious precepts in
public without running the risk of violating the full and equal recognition
and exercise of the fundamental rights and freedoms guaranteed by sections 3
and 10 of the Charter of human rights and freedoms.
186. Professor Jose Woehrling pointed out in that regard that the same
neutrality is incumbent on the state between individuals with religious
convictions and those who do not have any, since section 2(a) of the
Canadian Charter equally protects freedom of religion and freedom of
conscience.116 As long as the state [TRANSLATION] "… does not give
preference to or disfavour religious convictions over atheist or agnostic
convictions",117 neutrality subsists.
187. In the case at bar, the recitation of the prayer forced Ms. Payette to
participate in a religious practice and be subjected to a religious
conception that did not respect her convictions as a non-believer. She was
also singled out from the majority of people present when, contrary to
practice and the by-law, she remained seated while the prayer was recited.
The recitation of the prayer therefore engendered, in Ms. Payette's regard,
a distinction and difference in treatment based on religion.
188. Being forced to participate against her will and being singled out caused
her prejudice in that she found herself stigmatized in terms of the dominant
trend and the majority. Ms. Payette clearly indicated that she was
uncomfortable with that situation.
189. What is more, the evidence shows that hostile comments directed toward her
were made by the members of the public after she asked the chair whether he
intended to respond to the complaint filed with the Commission regarding the
recitation of the prayer at Council sittings.118 Ms. Payette testified that
she was humiliated by the reaction of some of those present when she spoke
and was even frightened when abusive comments were again made while she was
on her way to her car. Witnesses Mtre. Angelopoulos and Mtre. Collard said
they were unaware and had no knowledge of the incident. Ms. Payette's
testimony cannot be set aside on the basis of that testimony. Although they
could not confirm the incident, the witnesses for the defence did not really
deny it.
190. Ms. Payette was compelled to either abide by the beliefs of the majority
or be singled out, which reinforces the idea that her own convictions or
minority beliefs were less worthy of recognition, which is contrary to the
concept of freedom of religion and conscience and to the very foundation of
the right to equality.
191. The Court of Appeal for Ontario, in Freitag, concluded that, compelling a
person to conform to the beliefs of the majority is a constant, subtle
reminder of the person's difference compared with the majority, and
therefore a burden likely to cause a [TRANSLATION] "not insignificant"
prejudice:
Someone who chooses to object to government action which is inclusive of the
majority but forces the religious minority to conform or to accept exclusion,
is then subjected to further scrutiny of his actions, together with the
further pressure and intimidation which that may occasion. ... "The subtle
and constant reminder" of his difference from the majority is what causes the
appellant to feel intimidated and uncomfortable at council meetings.119
[Emphasis added.]
192. Ms. Payette testified about her unease when she remained seated while the
prayer was recited, because that forced her to be publicly singled out.
Ultimately, Ms. Payette had no choice but to tolerate that religious
practice, leave the room or agree to enter the room once the prayer was
said. In that regard, the Court of Appeal for Ontario pointed out, in
Freitag, that each person is entitled to freely attend the public meetings
of a municipal council:
Just as children are entitled to attend public school and be free from
coercion or pressure to conform to the religious practices of the majority,
so everyone is entitled to attend public local council meetings and to enjoy
the same freedom.120
193. Ms. Payette's manifestations of non-belief distinguish her from others who
are in the majority or, what is worse, subject her to ostracism or "the
tyranny of the majority", as Dickson C.J. said in Big M Drug Mart:
What may appear good and true to a majoritarian religious group, or to the
state acting at their behest, may not, for religious reasons, be imposed
upon citizens who take a contrary view. The Charter safeguards religious
minorities from the threat of "the tyranny of the majority".121
[Emphasis added.]
194. Involved here is a distinction that impairs Ms. Payette's full and equal
exercise of freedom of religion and conscience, contrary to sections 3 and
10 of the Charter of human rights and freedoms.
195. In contrast to what Ville de Laval claimed,122 a number of factors
indicate that the prayer recited at the opening of the Council sitting
concerns directly the members of the public present.
196. Section 322 of the Cities and Towns Act stipulates the public nature of
sittings of City Council. It is provided, in particular, that "[a] sitting
of the council includes a period during which the persons attending may put
oral questions to the members of the council". It is also provided that the
"council may, by by-law, prescribe the length of the period, the time at
which it is held and the procedure to be following in putting a question".
197. When the chair recites the prayer at the opening of the sitting, he or she
does not do so as a private individual but acts as part of his or her duties,
which are, by their nature, "public". That public power is exercised at all
times over those governed. The practice of reciting the prayer is not exempt
from this, particularly since it is provided for in a by-law and there is a
procedure to be followed by the chair and councillors, as well as the
members of the public. It is, in fact, section 12 of the by-law that orders
them to rise, as the councillors must do, before the prayer is recited by
the chair.
198. City Council is the elected proxy of the municipal community, which is
usually composed of various religious communities and non-believers. To
respect its obligation of neutrality, City Council must take into
consideration everyone's interests, even a minority viewpoint in its midst.
199. Lastly, the option of reciting the prayer in caucus outside the presence
of the public before the formal Council meeting begins—the practice in the
House of Commons, where a prayer is recited before any work whatsoever
begins and before the public and the media are admitted—was not accepted,
since, during the trial, the Council members in caucus adopted a resolution
on April 3, 2006 to maintain the recitation of the prayer and the related
customary practice at the opening of public sittings of City Council.
Limits, under section 9.1 of the Charter of human rights and freedoms, to the
exercise of the right to freedom of conscience and religion
The tribunal having concluded that there is interference in the right to
equality in the exercise of the right to freedom of conscience and religion, in
violation of sections 3 and 10 of the Charter of human rights and freedoms, it
must now be determined whether the exercise or recognition of Ms. Payette's
right to freedom of religion and conscience can be limited by section 9.1 of the
Charter of human rights and freedoms in the framework of the limits required to
respect democratic values, public order and the general well-being of citizens.
200. The jurisprudence123 has established that section 9.1 is a provision of
the same nature as section 1 of the Canadian Charter. Hence, the analysis
process in Oakes124 applies.
201. Ville de Laval bears the burden of proving that section 12 of by-law
L-5480 is aimed at achieving a real and urgent objective. If it is to
discharge that burden, the objective must have a rational connection with
the step taken to achieve it. Lastly, the effect of the measure must be
proportionate to the objective pursued and impair freedom of religion and
conscience as little as possible.
202. Dickson C.J. pointed out, in Big M Drug Mart, the importance of not
imposing, by legislative means, religious values that run counter to respect
for the equality of all individuals:
It [the Lord's Day Act] takes religious values rooted in Christian morality
and, using the force of the state, translates them into a positive law
binding on believers and non-believers alike. The theological content of the
legislation remains as a subtle and constant reminder to religious
minorities within the country of their differences with, and alienation
from, the dominant religious culture.125 [Emphasis added.]
203. In the case at bar, the evidence shows that the purpose of section 12 of
by-law L-5480, adopted in 1982, is to make official the tradition of the
recitation of the prayer at the opening of public sittings of City Council.
204. Certain official documents dating back as far as 1935 show that the
recitation of the prayer was in effect in a number of cities that merged to
form Ville de Laval in 1965. Since then, it has been a tradition for the
chair to open meetings of City Council with the prayer adduced in evidence.
205. As expert witness for Ville de Laval, Ms. Lefebvre acknowledged in her
testimony that the prayer said at the meeting of City Council is inspired by
a custom originating in a religious heritage126 and that it could constitute
a supplication for the intervention of a supernatural force.
206. The adoption of section 12 of by-law L-5480 in 1982 made official and
mandatory the customary religious observance of the recitation of the prayer
at the opening of public sittings of City Council.
207. Hence, the adoption of a resolution, on April 3, 2006,127confirmed the
objective of perpetuating the tradition of a religious custom, not ensuring
decorum or underlining the importance of the work of the councillors. The
wording of the [TRANSLATION] "whereas" clauses of the resolution is clear in
that regard. Five of them concern the preservation of the tradition, while
two concern the resolution and the Commission's recourse before the
Tribunal. None of them concerns the importance of the councillors' work or
the decorum of the sittings of City Council.
208. Although section 12 of by-law L-5480 may have the effect of imposing
decorum at the opening of the sittings and insuring the proper work of the
councillors, it nevertheless has as its purpose the observance of a
religious practice at the opening of the public sittings of City Council,
the jurisdiction of which is essentially secular.
209. Section 12 of by-law L-5480 applies to all those present at a public
sitting. It is thus the exercise of a religious practice acknowledged as
such by all. It applies to the councillors and the other people present at
the opening of the sitting. The recitation of the prayer imposes a religious
atmosphere and tone that produces a form of coercion contrary to the spirit
of the Charter of human rights and freedoms and the dignity of non-believers
or people who do not adhere to that religious ideal. Such an objective is
incompatible with the objective of the Charter of human rights and freedoms
in terms of the full and equal exercise and recognition of the right to
freedom of religion and conscience, as protected by sections 10 and 3.
210. Although the prayer is recited in a civic setting, that does not prevent
the purpose of the recitation of the prayer from being essentially
religious. The Supreme Court of Canada, in Big M Drug Mart, distinctly
pointed out that the purpose of a law cannot shift:
Furthermore, the theory of a shifting purpose stands in stark contrast to
fundamental notions developed in our law concerning the nature of
"Parliamentary intention". Purpose is a function of the intent of those who
drafted and enacted the legislation at the time, and not of any shifting
variable.128
211. The objective of preserving a religious tradition, such as the recitation
of a prayer, cannot be achieved without regard for the Charter of human
rights and freedoms and the state's obligation of neutrality stemming from
it in religious matters. That neutrality is the result of a long historical
evolution that, in Canada "made it possible for the ties between church and
state to be loosened, if not dissolved".129 It is certain that the prayer
was recited in 1935 and even 40 years ago in a context where the ties
between church and state were not the same and in a legal context where the
protection of fundamental freedoms and rights was very different. LeBel J.
recalled, in Lafontaine (Village), the historical evolution of the principle
of neutrality:
Our Court has recognized this aspect of freedom of religion in its decisions,
although it has in so doing not disregarded the various sources of our
country's historical heritage. The concept of neutrality allows churches and
their members to play an important role in the public space where societal
debates take place, while the state acts as an essentially neutral
intermediary in relations between the various denominations and between
those denominations and civil society.130
212. Even if the perpetuation of a religious tradition could be considered
legitimate and reasonable, and not wanting to engage in a comprehensive
examination of all the criteria of Oakes, the Tribunal would conclude,
according to the most sensitive criterion, namely, minimal impairment, that
the measure taken to achieve the objective pursued does not produce as
little impairment as possible. The prayer could be recited even before the
opening of the sittings of City Council, since the evidence shows that the
councillors meet in caucus before the sitting; this would be a more
responsive measure that would not impair rights beyond what is necessary.
213. This would, in a way, be a reasonable accommodation that respects the
criteria of minimal impairment, if the Tribunal had, in fact, found the
objective of section 12 of the by-law to be valid, which is not the case.
214. Section 12 of by-law L-5480, in practice, and the text of the prayer
itself, as found in the resolution adopted on April 3, 2006, violate
sections 10 and 3 of the Charter of human rights and freedoms to the extent
that the prayer is recited during a public sitting of City Council.
Remedies
215. The Supreme Court of Canada has established many times that the Canadian
Charter131 and provincial human rights laws,132 which are quasi-
constitutional texts, must be interpreted broadly and liberally so as to
promote the achievement of the objectives they pursue.
216. As regards remedies, the Supreme Court of Canada pointed out in Doucet-
Boudreau,133 in which it was a question of the validity of a reporting order
issued to the government of Nova Scotia with a view to remedying breaches of
section 23 of the Canadian Charter, that the provisions of redress must be
interpreted so as to ensure a full, effective and meaningful remedy for
violations of the Canadian Charter:
Purposive interpretation means that remedies provisions must be interpreted
in a way that provides "a full, effective and meaningful remedy for Charter
violations" ... where there is a right, there must be a remedy. More
specifically, a purposive approach to remedies requires at least two things.
First, the purpose of the right being protected must be promoted: courts
must craft responsive remedies. Second, the purpose of the remedies
provision must be promoted: courts must craft effective remedies.134
217. In Quebec (Commission des droits de la personne et des droits de la
jeunesse) v. Communaute urbaine de Montreal (Larocque),135 in which a
discriminatory hiring standard of a regulatory nature was contested under
the Charter of human rights and freedoms, the Supreme Court of Canada, even
while recognizing that the general principles of public law did not allow
the public administration to be liable, considered that the Quebec Court of
Appeal should not have limited itself to a purely declaratory order on the
ground that no fault was committed in the exercise of the regulatory
activity. LeBel J. wrote the following on the subject:
However, the Court of Appeal should not have settled on a purely declaratory
remedy either. The Court ruled that no [translation] "order compelling the
cessation of the infringement can be made, since there is no fault ..."
(para. 19). With respect, this position ignores the diversity and
flexibility of remedies for enforcing fundamental rights. ...
... Despite occasional disagreements over the appropriate means of redress,
the case law of this Court, although the law is undoubtedly still in its
early stages of development in this area, stresses the need for flexibility
and imagination in the crafting of remedies for infringements of fundamental
human rights (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003]
3 S.C.R. 3, 2003 CSC 62, at paras. 24-25 and 94). ... [Emphasis added.]136
218. In that ruling, the Supreme Court found that the enforcement of the
fundamental rights provided for in the Charter of human rights and freedoms
sometimes requires the imposition of affirmative or negative obligations in
order to put an end to behaviour or change customs incompatible with the
rights the Charter protects. The Court therefore added to the declaration of
inoperability an order requiring the examination, in future, of the
complainant's candidacy without discrimination:
Thus, in the context of seeking appropriate recourse before an administrative
body or a court of competent jurisdiction, the enforcement of this law can
lead to the imposition of affirmative or negative obligations designed to
correct or bring an end to situations that are incompatible with the Quebec
Charter.
In the case at bar, the recognition of the right must be accompanied by a
closely linked remedy, one that would prospectively correct the
discrimination to which the appellant was subjected ...
This coupling of conclusions, one following logically from the other, could
have been adopted by the Tribunal. Nothing in the Quebec Charter would
prohibit this. Given the difficulties inherent in a recourse in damages and
the problems posed by the retroactive nature of the decision, this
conclusion would be, in the circumstances of this case, an appropriate
measure of redress within the meaning of s. 80 of the Quebec Charter.137
[Emphasis added.]
219. In Doucet-Boudreau, the Supreme Court considered that the circumstances of
the violation or denial of a right must be taken into account in the search
for the most appropriate remedy:
... First, an appropriate and just remedy in the circumstances of a Charter
claim is one that meaningfully vindicates the rights and freedoms of the
claimants. Naturally, this will take account of the nature of the right that
has been violated and the situation of the claimant. A meaningful remedy
must be relevant to the experience of the claimant and must address the
circumstances in which the right was infringed or denied.138
220. Section 52 of the Charter of human rights and freedoms provides that
"[n]o provision of any Act … may derogate from sections 1 to 38 ...".
221. Section 80 of the Charter of human rights and freedoms indicates that the
Commission may apply to the Tribunal with a view to obtaining, "where
consistent with the public interest, any appropriate measure against the
person at fault or to demand, in favour of the victim, any measure of
redress it considers appropriate at that time".
222. Section 12 of by-law L-5480 indicates that the opening of a public sitting
of City Council rests essentially on the observance of a religious practice,
namely, the recitation of a prayer. As we concluded, the practice exposes
Ms. Payette to different treatment that is prejudicial in effect and
interferes with her right to the equal exercise of her freedom of religion
and conscience. We must therefore issue an order allowing a full, effective
and meaningful remedy, considering the circumstances of the interference
with the protected rights.
223. According to its wording, section 12 of by-law L-5480 applies to all those
present and collectively at the opening of sittings of City Council of Ville
de Laval. So it is not a practice that can apply individually to a person or
group of people present. Since any person, including Ms. Payette, can freely
and at any time attend the public sittings of City Council, we must, in
order to put an end to the discriminatory interference, order Ville de Laval
to cease the recitation of the prayer.
224. Given the public and collective context in which that religious practice
takes place, the order to cease the recitation of the prayer will mean that
the declaration of inoperability will inevitably apply to [TRANSLATION]
"all those then present in the Council room".139
225. Note that, in 2004, the Court of Appeal of Alberta140 confirmed, after
finding that a legislative standard was discriminatory, that an
administrative human rights tribunal had the power141 to issue a general
order to cease, in future, the discriminatory application of the standard,
not only in regard to the complainants in the dispute but also in regard to
all people likely to be contemplated by the standard, thereby making the
standard inoperative. Thus, the Court of Appeal confirmed the grounds of the
Court of Queen's Bench that such an order was necessary in order to avoid
making the concept of equality elusive:
Equality would be elusive, available only to those with the where-with-all
to fight for it. This would indeed be an impoverished interpretation of the
quite grand vision of the Act as expressed in the Preamble.142
226. The coupling of a declaration of inoperability and an order to cease has,
beyond the particular interest for Ms. Payette, a collective dimension in
accordance with the principles that the purpose that the Charter
contemplates first and foremost: the correction of the violation and the
search for the most effective and fullest remedy.
227. The adoption of the resolution of April 3, 2006, including the formal
adoption of the text of the prayer, also constitutes a discriminatory act to
the extent that the text of the prayer is recited by City Council at public
sittings; an order to cease the practice of the recitation of the prayer is
also aimed at that resolution.
228. In Larocque, LeBel J. found that an order compelling the employer to
consider the future candidacy of a person, without taking into consideration
his or her loss of hearing, could be coupled with the declaration of
inoperability, since no provision of the Charter of human rights and
freedoms prohibited it:
This coupling of conclusions, one following logically from the other, could
have been adopted by the Tribunal. Nothing in the Quebec Charter would
prohibit this. Given the difficulties inherent in a recourse in damages and
the problems posed by the retroactive nature of the decision, this
conclusion would be, in the circumstances of this case, an appropriate
measure of redress within the meaning of s. 80 of the Quebec Charter.143
229. A declaration of inoperability, coupled with an order to cease the
recitation of the prayer at public sittings of the city, are conclusions
that constitute "in the circumstances of this case, an appropriate measure
of redress within the meaning of s. 80 of the Quebec Charter".144
230. Given the order to cease the recitation of the prayer at public sittings
of City Council of Ville de Laval, resolution 2006/47, adopted by City
Council of Ville de Laval on April 3, 2006, is null and void.
THEREFORE, THE TRIBUNAL:
ALLOWS the present application;
FINDS that the defendant, Ville de Laval, interfered, in a discriminatory
manner, with Danielle Payette's right to the recognition and exercise of her
freedom of religion and conscience, by beginning the public sittings of City
Council with the recitation of a prayer, the whole contrary to sections 3
and 10 of the Charter;
ORDERS VILLE DE LAVAL TO CEASE the practice of the recitation of the prayer at
public sittings of City Council;
DECLARES INOPERATIVE section 12 of by-law L-5480 concerning the internal
procedures of City Council of Ville de Laval and repealing by-laws L-1 and
L-4889 and their amendments;
RENDERS NULL AND VOID resolution 2006/47 "recitation - prayer" of April 3, 2006
concerning the recitation of the following prayer by the chair at the
opening of each meeting of City Council of Ville de Laval:
[TRANSLATION]
We beseech you, Lord, to deign to grant us your grace and the wisdom
required to conduct our meeting and run our city well. Amen.
THE WHOLE with costs.
(s)
MICHÈLE RIVET, PRESIDENT
Mtre. Pierre-Yves Bourdeau
Commission des droits de la personne
et des droits de la jeunesse
360, rue St-Jacques Ouest, 2e etage
Montreal (Quebec) H2Y 1P5
Counsel for the plaintiff
Mtre. Chantal Masse
McCarthy, Tetrault s.e.n.c.r.l.
1000, de la Gauchetière Ouest, bureau 2500
Montreal (Quebec) H3B 0A2
Counsel for the defendant
Mtre. Luc Alarie
Alarie, Legault, Henault
801, rue Sherbrooke Est, bureau 1100
Montreal (Quebec) H2L 1K7
Counsel for the complainant
Dates of hearing: March 30 and 31, April 6 and June 16, 2006
AUTHORITIES OF THE PLAINTIFF
Legislation
Cities and Towns Act, R.S.Q., c. C-19 (excepts).
Jurisprudence
R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295.
Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551.
Congregation des temoins de Jehovah de St-Jérôme-Lafontaine v. Lafontaine
(Village), [2004] 2 S.C.R. 650.
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6.
Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710 (excerpts).
Quebec (Commission des droits de la personne et des droits de la jeunesse)
v. Martin, (1997) 33 C.H.R.R. D/487 (H.R.T.Q.).
Zylberberg v. Sudbury Board of Education (Director), (1989) 52 D.L.R. (4th) 577.
Russow v. British Columbia (Attorney General), (1990) 62 D.L.R. (4th) 98.
Freitag v. Penetanguishene (Town) (1999), 179 D.L.R. (4th) 150.
Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights
Commission), (2001) 201 D.L.R. (4th) 698.
Santa Fe Independent School District v. Jane Doe, Supreme Court of the
United States, 530 U.S. 290, June 19, 2000.
Commission scolaire regionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525.
Commission scolaire St-Jean-sur-Richelieu v. Commission des droits de la
personne du Quebec, [1994] R.J.Q. 1227 (C.A.).
British Columbia (Public Service Employee Relations Commission) v. BCGSEU,
[1999] 3 S.C.R. 3 (Meiorin).
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (excerpts).
Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v.
Communaute urbaine de Montreal, [2004] 1 S.C.R. 789 (Larocque).
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3.
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.
General Motors du Canada Limitee v. Compagnie d'assurance
Missisquoi & Rouville, [1988] R.D.J. 18 (C.A.).
Miuf - 11, [1988] R.D.J. 452.
R. v. Mohan, [1994] 2 S.C.R. 9 (excerpts).
P.G. Quebec v. Marleau, [1995] R.D.J. 236.
Doctrine
Irwin Cotler, "Freedom of Conscience and Religion", in Your Clients and the
Charter-Liberty and Equality (Cowansville, Qc.: Yvon Blais, 1988) at 103 to 130.
Jose Woehrling, "L'obligation d'accommodement raisonnable et l'adaptation de
la societe à la diversite religieuse", [1998] 43 McGill L.J. at 325 to 401.
Jose Woehrling, Etude sur le rapport entre les droits fondamentaux de la
personne et les droits des parents en matière d'education religieuse,
ministère de l'Education, 1999-99-0055 at 51 to 53 and 76 to 105.
Pierre Bosset, "Pratiques et symboles religieux : quelles sont les
responsabilites des institutions ?", in Service de la formation permanente,
Barreau du Quebec, Vol. 142, Les 25 ans de la Charte quebecoise (2000)
(Cowansville, Qc.: Yvon Blais) at 39 to 63.
Jean Hetu, Yvon Duplessis and Dennis Pakenham, Droit Municipal - Principes
generaux et contentieux (Montreal: Hébert, Denault, 1998) at 115 to 168.
Daniel Proulx, "Le concept de dignite et son usage en contexte de
discrimination : deux Chartes, deux modèles", in Numero special de la Revue
du Barreau en marge du vingtième anniversaire de l'adoption canadienne des
droits et libertes (Cowansville, Qc.: Yvon Blais, March 2003) at 485 to 542.
David Robitaille, Non-independance et autonome de la norme d'egalite
quebecoise : des concepts "fondateurs" qui meritent d'être mieux connus,
(2004) R.D.U.S. 103.
AUTHORITIES OF THE DEFENDANT
Legislation
Charter of human rights and freedoms, R.S.Q., c. C-12.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
[Schedule B to the Canada Act 1982 (U.K.) 182, c. 11], reproduced in R.S.C.
(1985), Schedule II, No. 44.
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reproduced in R.S.C. 1985,
Schedule II, No. 5.
Cities and Towns Act, R.S.Q., c. C-19 (excerpts).
Act to amend the charter of the City of Laval, S.Q. 1968, c. 96 (excerpts).
Standing Orders of the House of Commons, codified version as at February 18,
2005, on line: Government of Canada Publications, http://publications.gc.ca
(excerpts).
Standing Orders of the Senate of Canada, October 2005, on line: Parliament of
Canada, http://www.parl.gc.ca (excerpts).
National Anthem Act, R.S.C., c. N-2.
Oaths of Allegiance Act, R.S.C., c. O-1 (excepts).
Supreme Court Act, R.S.C., c. S-26 (excerpts).
Public Protector Act, R.S.Q., c. P-32 (excerpts).
Boards of Trade Act, R.S.C., c. B-6 (excerpts).
Competition Act, R.S.C., c. 34 (excerpts).
National Defence Act, R.S.C., c. N-5 (excerpts)
National Film Act, R.S.C., c. N-8.
Parliament of Canada Act, R.S.C., c. P-1 (excerpts).
Harbour Commissions Act, R.S.C., c. H-1 (excerpts).
Canada Shipping Act, R.S.C., c. S-9 (excerpts).
Public Service Employment Act, S.C. 2003, c. 22 (excerpts).
Royal Canadian Mounted Police Act, R.S.C., c. R-10 (excerpts).
Canadian Security Intelligence Service Act, R.S.C, c. 23 (excerpts).
Corrections and Conditional Release Act, R.S.C., c. 44.6 (excerpts).
Emergencies Act, R.S.C., c. E-4.5 (excerpts).
Royal Style and Titles Act, R.S.C., c. R-12 (excerpts).
Code of Civil Procedure, R.S.Q., c. C-25 (excerpts).
Royal Canadian Mint Act, R.S.C., c. R-9 and P.C. orders 2000-919,
1999-2235, 2000-1140 and 2002-96.
Education Act, R.S.Q., c. I-13.3 (excerpts).
Act respecting municipal taxation, R.S.Q., c. F-2.1 (excerpts).
Taxation Act, R.S.Q., c. I-3 (excerpts).
Municipal Code of Quebec, R.S.Q., c. 27.1 (excerpts).
Charter of the French language, R.S.Q., c. C-11 (excerpts).
Act respecting fabriques, R.S.Q., c. F-1.
Religious Corporations Act, R.S.Q., c. C-71.
Freedom of Worship Act, R.S.Q., c. L-2.
Act respecting the constitution of certain churches, R.S.Q., c. C-63.
Act respecting Roman Catholic cemetery corporations, R.S.Q., c. 40.1.
Jurisprudence
Germain v. Quebec (Procureur general), J.E. 96-1557 (H.R.T.Q.).
Commission des droits de la personne v. Unifund Insurance Co. (Newfoundland),
J.E. 94-4 (H.R.T.Q.).
Commission des droits de la personne du Quebec v. Coutu, J.E. 92-178 (H.R.T.Q.);
motion for evocation dismissed, J.E. 92-1217; appeal dismissed, J.E. 93-1926.
Montreal (Communaute urbaine de) v. Cadieux, J.E. 2002-492 (C.A.).
Quebec (Procureure generale) v. Tribunal des droits de la personne, J.E.
2002-525 (C.A.).
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5.
Commission scolaire regionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525.
Procureur general du Quebec v. Lambert, REJB 2002-29363 (C.A.).
Amselem v. Syndicat Northcrest, REJB 2002-30953 (C.A.).
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712.
Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790.
Amselem v. Syndicat Northcrest, [2004] 2 S.C.R. 551.
R. v. Big Drug Mart Ltd., [1985] 1 S.C.R. 295.
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
Grant v. Canada (Attorney General), [1995] 1 F.C. 158 (R.T.) conf. par
[1995] F.C.J. No. 830 (F.C.A.).
Freitag v. Penetanguishene (Town) (1999), 179 D.L.R. (4th) 150 (Ont. C.A.).
Zylberberg v. Sudbury Board of Education (Director), [1988] O.J. No. 1488 (C.A.).
Russow v. British Columbia (Attorney General) (1989), 62 D.L.R. (4th) 98
(B.C. Sup. Ct.).
Manitoba Association for Rights and Liberties Inc. v. Manitoba
(1992, 94 D.L.R. (4th) 678 (Man. Q.B.).
Allen v. Renfrew (Corp. of the County), 2004 CanLII 13978 (Ont. Sup. Ct.).
R. v. Anderson, [2001] M.J. No. 34 (Prov. Ct.).
R. v. Robinson, [2004] M.J. No. 23 (Prov. Ct.).
R. v. Jones, [1986] 2 S.C.R. 284.
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6.
Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710.
Johnson v. Commission scolaire Lester B. Pearson, REJB 2000-19066 (C.A.).
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
Rosenberg v. City of Outremont, REJB 2001-24813 (S.C.).
Marsh v. Chambers, 463 U.S. 783 (1983).
Lynch v. Donnelly, 465 U.S. 668 (1984).
Lee v. Weisman, 505 U.S. 577 (1992).
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573 (1989).
Western Realty Projects Ltd. v. City of Edmonton and Triple Five Corp. Ltd.,
[1974] 5 W.W.R. 130 (conf. by [1975] W.W.R. 681 (Alta C.A.).
Lapalme v. St-Liboire (Municipalite de), J.E. 91-159 (S.C.).
Ste-Catherine (Ville de) v. Barry-Fyfe, J.E. 92-1755 (S.C.).
La Ville de Pincourt v. Dame Beaulieu, [1967] R.L. 100 (Municipal Court).
Houde v. Quebec Catholic School Commission, [1978] 1 S.C.R. 937.
Des Phares (Commission scolaire) v. Commission des droits de la personne et
des droits de la jeunesse, EYB 2006-100414 (C.A.).
Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791.
Doctrine
H. Brun and G. Tremblay, Droit constitutionnel, 4th ed. (Cowansville, Qc.:
Yvon Blais, 2001).
Le Petit Larousse illustre (dictionary), 2006.
Le Petit Robert (dictionary), 2006.
R. Marleau and C. Montpetit, eds., House of Commons Procedure and Practice
(Ottawa, Montreal, Toronto: House of Commons, Chenelière/McGraw-Hill, 2000).
Precis de procedure de la Chambre des communes, 3rd ed., Direction des
recherches pour le Bureau.
J. Woehrling, "L'obligation d'accommodement raisonnable et l'adaptation de
la societe à la diversite religieuse" (1998) 43 McGill L.J. 325.
Rogers, The Law of Canadian Municipal Corporations, Thomson-Carswell,
loose-leaf sheets.
H. Brun and G. Tremblay, Droit constitutionnel, 4th ed. (Cowansville, Qc.:
Yvon Blais, 2001).
R. Dussault and L. Borgeat, Traite de droit administratif, 2nd ed., Vol. I,
P.U.L., 1984.
P. Garant, Droit administratif, 5th ed. (Cowansville, Qc.: Yvon Blais, 2002).
AUTHORITIES CONSULTED BY THE TRIBUNAL OTHER THAN THOSE CITED BY THE PARTIES
Legislation
International law
Universal Declaration of the Rights of Man, General Assembly Resolution 217 A
(III) of 10 December 1948, U.N. Doc.
International Covenant on Civil and Political Rights, (1976) 999 U.N.T.S. 171.
International Covenant on Economic, Social and Cultural Rights,
(1976) 993 U.N.T.S. 3.
Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, (1981) U.N. DOC. A/RES/47/135.
General Observation No. 22, The right to freedom of thought, conscience and
religion (Art. 18), 30/07/93, CCPR/C/21/Rev.1/Add.4.
General Observation No. 18, Non-discrimination, 10/11/89, 37th sitting,
Office of the High Commissioner for Human Rights.
Jurisprudence
International law
Hudoyberganova v. Uzbekistan, CCPR/C/82/D/931/2000, November 5, 2004.
Leirvag v. Norway, CCPR/C/82/D/1155/2003, November 23, 2004.
Internal law
D'amours v. Bouchard, [2001] R.R.A. 310 (C.A.).
Quebec (Commission des droits de la personne et des droits de la jeunesse) v.
Montreal (City), [2000] 1 S.C.R. 665.
Smart v. Eaton, (1993) 19 C.H.R.R. 446.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia
(Council of Human Rights, [1999] 3 S.C.R. 868.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v.
Maksteel Quebec inc., [2003] 3 S.C.R. 228.
R. v. Oakes, [1986] 1 S.C.R. 103.
Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685.
Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571.
Ont. Human Rights Comm. v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536.
R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575.
Doctrine
Jean-Claude Royer, La preuve civile, 3rd ed. (Cowansville, Qc.: Yvon Blais,
2003.
Jose Woerhling, "L'actualite constitutionnelle au Canada : La Cour suprême du
Canada et la liberte de religion", 62 Revue francaise de droit constitutionnel,
April 2005, PUF at 404-418.
Jose Woerhling, "La place de la religion dans les ecoles publiques du Quebec",
published in Actes de la XVIIe Conference des juristes de l'Etat, April 2006,
(Cowansville, Qc.: Yvon Blais, April 2006) at 3.
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