The story leading up to Mouvement laïque québécois v Saguenay (City) spans almost 10 years, but it had a rather peculiar arc. After winning victories in Québec’s Human Rights Commission and Human Rights Tribunal, everything suddenly went sideways when the case reached Québec’s Court of Appeal. What went wrong, and why?
It’s easy to dismiss what happened when Québec’s Court of Appeal overturned the Tribunal’s ruling and made prayer in government meetings acceptable as simply a case of God-besotted justices abusing their power and basing their ruling on their faith rather than their reason. And, alarmingly, that is what happened, at least partially.
But the full story of what went wrong in that appeal is a bit more complicated, and enlightening.
To get the complete picture, we have to go back to the original complaint filed by Alain Simoneau and Mouvement laïque québécois (MLQ) to the Commission des droits de la personne et des droits de la jeunesse (CDPDJ; Québec’s human rights commission) back in March of 2007.
In the original complaint, Simoneau and the MLQ basically raised the following two issues:
- They wanted the recital of the prayer before city meetings to cease; and
- They wanted the removal of religious images in various council meeting spaces.
The latter point might need some clarification. Saguenay was formed in a 2002 amalgamation between the cities of Chicoutimi, Jonquière, La Baie, and Laterrière, and the municipalities of Shipshaw and Lac-Kénogami, as well as part of the township of Tremblay and two unincorporated areas. Chicoutimi was by far the biggest of the bunch, and remains the largest borough of Saguenay. When they do municipal meetings, they alternate between the former city halls/meeting spaces of Chicoutimi, Jonquière, and La Baie. The two religious symbols at issue were:
- A crucifix in La Baie; and
- A statue of the Sacred Heart in Chicoutimi.
There were no religious symbols at issues in Jonquière, because meetings there were held in a theatre.
Now, to be clear, these are not small and hard-to-notice symbols. The crucifix is 28”×13” (71 cm × 33 cm) and 6’ (1.83 m) off the ground, and the statue is 2’×1’×12” (61 cm × 30 cm × 30 cm) and 9’ (2.74 m) from the floor, and fitted with a light – both on the Mayor’s right during meetings. No one seems to know exactly where the statue came from – it was in the police station (which was in the basement of the town hall) until around 1977, owned by the police union, then it was given to the city administration and moved into the meeting hall. The crucifix was made in the 1980s by a renowned local artist – specifically commissioned by the city because the old one was quote-unquote “defective”.
When they reviewed Simoneau’s complaint, the Commission opted not to investigate the religious symbols issue; they chose to focus solely on the issue of the prayer. This will be important later.
After their investigation, the Commission agreed Simoneau had a case. However, they declined to represent him before the Tribunal. Their argument was that they had done a similar case the previous year, and anyway Simoneau had MLQ behind him so he was more than capable of representing himself.
During the period after the Commission investigation and before the Tribunal, the city enacted a by-law to legally enshrine the meeting prayer, and to define its wording in a way that was supposed to be non-denominational. It was a ploy, of course, but a ploy Simoneau and MLQ could not ignore. So they added it to their Tribunal complaint.
The complaint they made to the Tribunal had five requests:
- Declare the by-law inoperative and invalid;
- Stop prayer in council meetings;
- Remove religious symbols from public spaces;
- Give Simoneau $50,000 in punitive and moral damages; and
- Reimburse Simoneau and MLQ $100,000 for court and extrajudicial costs.
When the Tribunal heard the case, they did a somewhat surprising thing. Remember that the Commission opted not to investigate the religious symbols, and only focus on the prayer? The Tribunal decided to go ahead and look into the question of the religious symbols regardless, and they conducted their own investigation regarding them. This was in addition to using the investigation done by the Commission about the prayer. Again, this will be important later.
During their hearing, the Tribunal allowed three expert witnesses (in addition to 10 other non-expert witnesses, including Simoneau, Tremblay, some other city officials, and so on). Two of those expert witnesses were for the city, one was for Simoneau. The city’s expert witnesses were:
- Solange Lefebvre had held the religion, culture and society chair of the faculty of theology and sciences of religions at the Université de Montréal since 2003. She had a Ph.D. in theology from the Université de Montréal, as well as a D.E.A. (diplôme d’études approfondies, an advanced degree) in social anthropology and ethnology from the École des hautes études en sciences sociales in Paris.
- Gilles Bibeau had a Ph.D. in anthropology from Université Laval and a Ph.D. in comparative religions from the National University of Zaire. He was a full professor at the anthropology department of the Université de Montréal, a researcher and member of the Centre de recherche de l’hôpital Sainte-Justine, and a member and director of the Groupe interuniversitaire de recherche en anthropologie médicale et en ethnopsychiatrie (GIRAME).
MLQ’s expert witness was:
- Daniel Baril was a journalist with a Bachelor’s degree in religious science from the Université du Québec (1975) and a Master’s in anthropology from the Université de Montréal (2003). He is a member of the Association des anthropologues du Québec. He was a founding member of MLQ, had been its president in the past, and was currently vice-president.
If you read those bios, you may have noted that one of them is not quite up to par with the others. The reason for that is quite simple: the city had a ton more money to splurge on expert witnesses than MLQ – like by an order or magnitude. The background of the expert witnesses will be important later.
So the Tribunal heard the case and all the arguments – including the expert testimony – and ultimately ruled completely in favour of Simoneau (except they reduced the damages to $30,000 and denied the reimbursement).
This is the state of things when the case came before the Québec Court of Appeal.
The case was reviewed by three justices:
- Benoît Morin
- Allan R. Hilton
- Guy Gagnon
The conclusion of their review was unanimous – with Hilton dissenting only on a technical point (which is important, and I’ll mention it). However, Gagnon wrote the decision, so it is Gagnon who will be the villain of this part of the story.
The first thing Gagnon did was claim he had the right to dismiss all of the Tribunal decisions and substitute his own. And the trick he used involved the standards of review used for administrative tribunal decisions.
You will often hear opponents of human rights tribunals and commissions parroting the talking point that “they are not courts”, and calling them “extra-judicial”. There is a kernel of technical truth in those points, but nevertheless, describing them this way is an attempt to slander and delegitimize human rights tribunals and commissions, and to be deceptive about the actual powers that they have. Parliament is not a court either, but that hardly makes their decisions any less legitimate, or any less part of this country’s body of law.
The truth is that while human rights tribunals and commissions are not technically courts, they are administrative tribunals… which means their decisions are part of the legislative and judicial framework of the country. Their decisions are law, in the practical sense, if not in the precise technical sense.
Which, of course, means that their decisions are usually subject to judicial review. The same constitutional rules that create these bodies and give them jurisdictional power also describe how their decisions should be reviewed. The federal Tribunal’s decisions get reviewed by Federal Court of Appeal, and the Québec Tribunal’s decisions get reviewed by the Québec Court of Appeal.
The 2008 Supreme Court case Dunsmuir v New Brunswick codified the modern standards by which an appeals court can review a decision made by administrative decision makers… which is different from how they should review decisions made by courts. There are two standards of review:
- Reasonableness: This is the “normal” standard by which an appeals court should review an administrative decision (assuming there isn’t a reason to use the correctness standard). Basically: “Was the decision made reasonably?” The reviewing court is supposed to realize that the group that made the original decision knows their shit, and was working within their field of expertise (expertise which is probably beyond the Court’s own expertise in the matter). All they have to do then, is just make sure administrative tribunal didn’t fly off the rails.
- Correctness: This is the stricter standard by which an appeals court can review an administrative decision. Basically: “Was the law applied correctly in making the decision?” The reviewing court is supposed to ignore the decisions made by the administrative tribunal, and instead try to reconstruct them using proper legal standards. This standard is meant for cases where a decision was made that has important and wide-ranging legal consequences – basically it takes away the administrative tribunal’s power to make those kinds of decisions, and puts that power in the hands of the courts.
The tricky part is figuring out which standard to apply. The rule is (as far as I understand it – again, this is pretty recent stuff in Canadian law) that the reasonableness standard should be used if:
- There is a statue (by parliament or some other legislature) that says it should be used;
- The case is in a specialized area that the administrative body has expertise on; and
- The question at hand isn’t a question that is of “central importance to the legal system, and outside the specialized area of expertise”.
In this case, the Human Rights Tribunal has legal authority – as per the Charter – and matters of discrimination and freedom of religion are totally within their area of expertise, so the first two requirements are covered. So if the question isn’t something so huge that it’s too big for the Tribunal to handle, the reviewing court should just make sure the Tribunal’s decision was reasonable.
So here’s what Gagnon did:
One of the questions the Tribunal was considering, as part of its decision, was (quoting the Supreme Court decision):
the scope of the state’s duty of religious neutrality that flows from the freedom of conscience and religion protected by the Quebec Charter. In other words, just how secular is the state supposed to be?
Note that this was not one of the central questions in the case. The central questions were questions like: “Is the prayer discriminatory?” The state’s duty of neutrality was a relevant question that came out of those central questions at issue, but technically didn’t even need to be raised or answered. The Tribunal could have simply noted the practice was discriminatory, and never even bothered asking whether it was fundamentally wrong.
What Gagnon did was point to the question of state neutrality and say: Aha, this is a question of “central importance to the legal system” (point 3 above). Therefore, he doesn’t need to apply the reasonableness standard – he can apply the correctness standard. Which basically means he can completely ignore the Tribunal’s conclusion and substitute his own.
Which is exactly what he did.
Having thus asserted himself as sole judge and jury – or rather, replacement tribunal – in the matter, he then set about rebuilding the decision from the ground up… the way he wanted it.
The first thing he did was smear Simoneau’s sole expert witness, Daniel Baril. He claimed (falsely) that the Tribunal had not bothered to look into his credentials, and had simply declared him to be an expert out of the blue. He also claimed that Baril was not acceptable as an expert witness because he had ties to the complainant (specifically, he was a founding member of MLQ), and thus couldn’t be impartial. He made the somewhat balmy accusation that the Tribunal had just swallowed Baril’s opinion wholesale, ignoring the opinions of the other two expert witnesses (nevermind the fact that Solange Lefebvre alone was quoted easily twice as much as Baril was).
But specifically, Gagnon did not use the correctness standard – or even the reasonableness standard – for this part of the decision. Instead, he used the “palpable and overriding error” standard that was supposed to be used when reviewing certain court decisions. Gagnon used the rules to gauge bias in judges and court-appointed experts… not expert witnesses chosen by the participants. For those kinds of expert witnesses, Gagnon was supposed to look at the substance of the testimony and see if it was reasonably unbiased… but Gagnon didn’t want to look at the substance of Baril’s testimony at all (likely because it was so much more obviously reasonable than the other expert witnesses’ testimony, as the Tribunal noted).
So he just declared Baril to be an invalid witness, and effectively erased his entire testimony.
Next Gagnon moves on to the question of whether the state should be neutral with respect to religion. He starts by claiming that state neutrality with respect to religion is poorly understood, and then points out that Québec has no “charter of secularism” – or indeed any formal statement that it’s secular at all (QCCA p.64). He decides that it’s good enough if the state isn’t imposing a particular religion on people, or hindering anyone’s ability practice their religion. He talks about a silly notion called “benevolent neutrality” (QCCA p.76), which is really better described as “magnanimous non-neutrality”. (I will cover the various definitions of secularism used throughout the affair in a later instalment.)
The catch, though, is that you have to argue that the prayer used by Tremblay, with all his crossing and “amen” and “in the name of the Father, Son, and Holy Spirit”, isn’t the prayer of a particular religion. This is what Gagnon attempts to do next.
According to him, it doesn’t matter what the Mayor does as he says the prayer, or even that the Mayor himself has said that it is a Christian prayer. That’s just how he interprets it, you see, and subjective interpretations are not relevant (QCCA p.81). By the same logic, Gagnon chooses to summarily dismiss Baril’s opinion that prayer isn’t universal because that’s just Baril’s subjective interpretation (QCCA p.82).
But then Gagnon turns around and says that the opinions of the other two experts – Lefebvre and Bibeau – are not merely subjective interpretation… those two are “right” when they say that the prayer is universal. Go figure.
Oh, and then there’s this: Here is what Bibeau said about the prayer (QCCA p.87):
« … la prière prononcée convient à un grand nombre de religions… »
(“… the prayer recited is appropriate for a large number of religions…”)
Here is how Gagnon interpreted that (QCCA p.88):
« … les valeurs exprimées par la prière litigieuse sont universelles… »
(“… the values expressed by the prayer at issue are universal…”)
Did you catch that? Somehow we went from the prayer being for “a large number of religions” to it being “universal”. This isn’t some schmuck on the Internet – this is a Justice of the Québec Court of Appeal; he should be ashamed of such sloppy logic. No matter how much you stretch it, “a large number” is not “universal”, so the prayer does discriminate against some groups. That was the conclusion of the Tribunal (and the Supreme Court). Gagnon comes to a different conclusion merely by some sloppy logic, and ignoring facts (like that there’s obviously at least one person who doesn’t think the prayer applies to him… namely Simoneau… so it clearly isn’t “universal”).
So Gagnon concludes that the prayer is “universal”, and since it isn’t the prayer of a specific religious tradition – and since reciting it doesn’t prevent Simoneau from being an atheist (it just forces him to go outside to do it) – everything is just peachy.
Next, Gagnon throws out the Tribunal’s ruling on the religious symbols. The reasoning in this case is a matter of legal propriety. The Tribunal is not supposed to do investigations, it is just supposed to hear evidence and make a decision. The investigation is supposed to be done by the Commission. But the Commission decided not to look into the issue of the religious symbols – they only focused on the prayer. So the Tribunal shouldn’t have brought the issue up itself.
So far, so good. But then, bizarrely, Gagnon goes on to rule on the religious symbols he just said shouldn’t be ruled on. And at this point, it shouldn’t surprise you that he fucks it up spectacularly.
First he quotes the crucifix’s sculptor, Victor Dallaire, saying that the crucifix doesn’t have a religious purpose (QCCA p.122). Yes, really. The reasoning? The dead-or-dying Jesus hanging from the cross wasn’t NAILED to it! It’s a totally secular crucifix without the nails, apparently.
That’s not even all! In my favourite bit of sublime absurdity from the ruling, Gagnon quotes expert witness Bibeau saying the crucifix isn’t religious because it
ne répond pas aux normes canoniques d’un crucifix… it “does not meet the canonical standards for a crucifix” (QCCA p.124). Yes, friends, somewhere out there there are “canonical standards” for crucifixes, like a holy building code for crosses, and this particular cross – maybe because the ratio of the cross beam to the vertical wasn’t within tolerances – failed to qualify. Thus: secular. Christian logic!
You’re probably curious as to how he justified the Sacred Heart statue as nonreligious. Well that trick was even simpler (QCCA p.123): “We don’t know where it came from, thus we can’t presume it’s religious. Thus: secular.”
And of course, he caps all this off with the old canard that these symbols have no religious meaning for most of the population. They’re just “historical symbols” of Québec’s “heritage”. Yes, folks, that’s not a Christian crucifix; that’s a Québec crucifix. Y’know, recalling their heritage from those historical days when they used to crucify people in Québec.
As an aside: the majority opinion was written by Gagnon and signed by Morin. Hilton dissented, but only on the technical point that Gagnon was wrong to rule on the symbols after ruling the symbols weren’t part of the decision to begin with. Hilton noted that he saw a huge difference between a
20-second, non-denominational prayer recited at the start of each meeting, and
the permanent presence of religious symbols in two of the City’s three meeting rooms (QCCA p.164). He would have preferred that Gagnon had not ruled on the symbols, so that the question could be considered separately at another time. I’m reading between the lines, but I gather Hilton was hinting that while he okayed the prayer, he wouldn’t have okayed the symbols (had they been at issue). That’s a point for Hilton, but bear in mind that he signed off on all the other crap in the majority opinion.
Anyway, back to Gagnon’s majority opinion, next it’s on to the effect of the prayer on Simoneau. Gagnon first reiterates that the prayer doesn’t prove the state was trying to promote a particular religion. Then he dismisses the claim that being forced to sit through a prayer is a violation of Simoneau’s moral convictions, apparently deciding for Simoneau what atheism should mean for him.
Gagnon also dismissed the argument that sitting through the prayer marked Simoneau as an outsider. Why? Because Simoneau wasn’t the only person who sat through the prayer (QCCA p.134). Got that atheists? If one atheist shows up to a council meeting and sits uncomfortably through an unnecessary religious ritual, that’s discrimination… but two? No problems there!
Bizarrely, Gagnon then accuses Simoneau of bringing the issue of prayer into the public sphere (QCCA p.135)! Yes, really. If Simoneau had just stayed quiet about it, the prayer wouldn’t have been a public issue, and Simoneau’s life wouldn’t have been affected. To Gagnon’s credit, he does point out that some of the Mayor’s behaviour with regards to the case was unacceptable… however, he decides it doesn’t quite count as discrimination, and that it wasn’t quite bad enough to justify taking remedial action.
So that’s what happened in the Québec Court of Appeal. Basically:
- They decided that one aspect of the Tribunal’s decision (and not even the central question) triggered a “correctness” review – rather than the “reasonableness” review that would normally be used. Even more troubling, they decided to review the entire decision by that standard, even though only one small part of it justified it. A correctness review allows the reviewing court to completely ignore the decision and reasoning of the Tribunal and substitute its own. The Court of Appeal took it upon themselves to do that.
- The question that triggered the correctness standard was the question of what the scope of state neutrality with respect to religion should be. The central question in the case, of course, was whether the prayer was discriminatory… not how neutral the state should be.
- They declared that the sole expert witness on the side of Simoneau and MLQ was disqualified. However, they did it by using the standards for a court-appointed expert witness… not an expert witness chosen by the participants, and certainly not any expert witness at a tribunal hearing (rather than a court). This was wrong under any standard of review.
- They accepted the expert opinions of the other two expert witnesses, and ignored all of the evidence collected by the Tribunal that refuted them.
- They introduced their own standard for state neutrality out of the blue – “benevolent neutrality” – and never really bothered to justify it properly other than by creating a straw man “absolute neutrality”. (Note that their standard for state neutrality isn’t even the same one as recommended by the Bouchard–Taylor Commission… they just totally ignored them, too, and made up their own standard.)
- They made several peculiar arguments to justify their assertion that the prayer is “universal” – something that wasn’t supported by the evidence they had, which they were supposed to be reviewing. To do this, they had to ignore or dismiss an enormous number of facts, and make some leaps that strain logic.
Obviously the Justices involved in the review aren’t villains – my rhetorical name-calling notwithstanding – but clearly they failed to do their jobs properly in this case. Even if they could muster a sound legal argument for simply throwing out the Tribunal’s decision, they should have been extremely cautious about rewriting it. Instead they went willy-nilly over it, ignoring or dismissing whatever was inconvenient, randomly accepting whatever worked. The end result was described in the Supreme Court ruling as conceptually confusing, and erroneous. It’s hard not to believe that, at some level, Justices in the Québec Court of Appeal let faith – or perhaps just deference to faith – override reason.
On the other hand, without their ineptitude, the case might not have made it to the Supreme Court. If they had done their job properly and upheld the Tribunal’s ruling, it’s possible that Tremblay and Saguenay might have opted to call it quits at that point. That would have been a wonderful victory for Québec secularists, but it wouldn’t have helped the rest of Canada much. Instead, because they ruled so badly, and because Simoneau and MLQ refused to give up the fight, we ended up with the awesome Supreme Court ruling that we got.