We’ve reached the end of this series on Mouvement laïque québécois v Saguenay (City), so let’s look back on the main points.
One of the key questions throughout the Saguenay case was whether Canada is a secular country, and if so, what that means.
Canada is in a strange place when it comes to whether or not it is a secular state. Unlike the US, Canada does not have an official policy of being a secular state. It is, in fact, technically a Christian nation, whose head of state was allegedly appointed by God.
On the other hand, since repatriation, we have been subject to the Charter of Rights and Freedoms. One of the most important court cases in Canadian history is R v Big M Drug Mart Ltd, which was the first Supreme Court case whose judgment was based on Section 2 of the Charter. This is the infamous “Lord’s Day Act” case, where a store had been charged with doing business on a Sunday, in violation of the “Lord’s Day Act”. The ruling struck down the “Lord’s Day Act”, and established that Canada is – in practice if not literally de jure – a secular country.
But while R v Big M Drug Mart Ltd established that government cannot favour or hinder religion, it did not clearly define the parameters of state secularism. Secularism was there, but you had to read carefully to see it, and it was all too easy to ignore the implications and fabricate your own understanding of what Canadian secularism should look like. This actually happened in the Court of Appeal ruling in the Saguenay case.
In Mouvement laïque québécois v Saguenay (City) the Supreme Court was obligated to clarify Canadian secularism, even if only to explain why the Court of Appeal got it so wrong. Justice Clément Gascon took great care not to use the s-word, and instead talked about “religious neutrality”. In fact, he specifically ruled out secularism. However, what he ruled out was what he called “absolute secularism”, which was not actually secularism, but rather a virulent form of fascist anti-religious extremism that proponents often try to disguise as secularism. The reality is that the “neutrality” Justice Gascon describes is simply secularism, and that is how I will refer to it.
The state has a duty to be religiously neutral. That means that it cannot favour or hinder any religious belief or the lack of belief in religion. It also means that it must protect every person’s freedom of conscience and religion, and thus cannot use its powers to promote the participation of certain believers or nonbelievers in public life.
But that’s theory. In reality “the state” can’t be religious at all, nor can it promote or hinder religion. In fact, “the state” can’t do anything at all – it’s just a legal construct, not a person; it has no will and no capability to do anything on its own. The state can only act via its agents: state officials. Thus, if we’re going to talk about what the state can or can’t do, we must talk about the actions of its officials.
So when we say that “the state” must be religiously neutral, and cannot favour or hinder any religion (or lack thereof), what we really mean is that state officials must be religiously neutral. But of course, it’s not quite that simple. State officials are still Canadians, and like all Canadians they still have Charter-guaranteed rights to freely have and practice religious beliefs. People cannot and should not have to sign away their Charter rights just to hold public office. This would seem to create a conflict.
However, it really doesn’t create a conflict. The key to understanding this lies in realizing that state officials can act in two different capacities, at different times. In each action they perform they are either acting as “the state” (or rather, as an official agent of the state) or as private individuals; never as both simultaneously. When they are acting as private individuals, they have all the same Charter rights as any other private individual. When they are acting as “the state”, they enjoy all the privileges of acting as the state, but at the same time they have only those rights and freedoms that the state has. And the state does not have a right to be religious.
This is not a particularly difficult concept to grasp, but because there are groups determined to sow confusion and misinformation, it’s worth discussing in some detail. Consider a provincial premier: When the Premier orders breakfast at Tim’s, who is ordering that breakfast: the person, or the province? The answer is pretty obvious: it’s the person ordering that breakfast. Thus, in that action (ordering breakfast), the Premier enjoys all the freedoms and rights of any Canadian. How about when the Premier makes a speech bestowing an official provincial honour on someone; who is making that speech: the person or the province? Again, the answer is obvious: it’s the province (a private citizen wouldn’t be able to make that speech, or bestow such an honour).
As you can see, this isn’t a complicated idea. But let’s try some edgier examples.
The Premier headlines an event organized by the province, and opens it with a prayer. Who is praying: the person or the province? If you answered “the person”, you’re almost certainly being deliberately dishonest. The Premier is not just “some person” who happens to be up there praying at an official provincial event. Clearly that’s the Premier of the province up there praying. Which means that ze is clearly not acting as a private person, but rather as an official of the state. And the state is not allowed to promote or favour religion. This is a violation of the state’s duty of secularism.
How about this: The Premier is Sikh, and attends gurdwara every Sunday, and often leads the ardaas prayer. Now who is praying: the person or the province? In this case, it’s pretty obviously not the province. The Premier is simply enjoying the same freedom that every Canadian has to have a religion and practise it. This freedom is not magically voided upon being elected.
Still not complicated, but let’s get even edgier.
The Premier, being a kinky sort, decides to wear a large buttplug for a parliamentary session. Who is choosing what goes in the Premier’s ass: the person or the province? Pretty obviously the person. But this isn’t a particularly controversial case because the buttplug will not be visible. So let’s try something more visible. The Premier opts to wear bright red lipstick (sometimes called “whore lipstick”) for a parliamentary session. Who is choosing what the Premier puts on her… or his… lips: the person or the province? Once again, it’s obviously not the province.
Now let’s get dangerous. The Premier, being a Sikh, opts to wear a dastar (turban) for a parliamentary session. Who is choosing to wear the dastar: the person or the province? The person, right? So there’s no problem. It’s as easy as that.
And to spell it out – necessary because there are groups determined to confuse the issue – just because you are making a decision as a private individual and thus not subject to the limitations of acting as the state, it does not follow that you are free to make any decision you please without consequences. Choosing to wear a religious garment like a dastar is never going to be an inappropriate choice in practice; except in very specialized cases where health and safety are an issue, there’s nothing wrong with a person wearing one to work. Leather bondage fetish gear is rarely going to be an appropriate choice for work, given current social mores. So the fact that a state official can choose to wear a dastar to work doesn’t mean that they could also choose to go to work in bondage gear… or in a bunny costume… or wearing a T-shirt with a political slogan on it… or straight-up naked. Yes, they have a right to make all those choices as a private individual. No, they are not free from the consequences of those choices, which may include being sent home or even charged with contempt of Parliament.
The standards of propriety for Parliament are set by the social mores. So long as their choices are within those standards, members of Parliament are grown-ups who are free to dress themselves. There is no boardroom in Canada that will refuse to allow someone entry wearing a turban… there is almost certainly no boardroom that would allow someone entry in bondage gear. You can argue that the social mores are wrong, and there is nothing untoward about being naked (or in bondage gear, or anything else like that), and I wouldn’t disagree, but they are what they are.
So just because a state official is not bound by the limitations of the state when they dress themselves, it doesn’t mean they’re not bound by anything. They are still bound by social standards. And contemporary social standards don’t consider the turban (or kippah, or hijab, or chunni) to be inappropriate professional wear.
(By contrast, a niqab or burqa is not considered appropriate professional wear in most contexts. And there are secular, practical concerns – utterly unrelated to the religiousness of the niqab or burqa – about state officials hiding their faces while doing their job. So there could be a reasonable prohibition against MPs wearing those garments.)
To put it in simple terms: Whenever a person is acting as the state, they are subject to the privileges and the restrictions that come with acting as the state. But just because someone is a state official, it does not follow that every single action they perform is an official state action. When a person – any person, state official or not – makes decisions as a private person, they are protected by the Charter, and free to enjoy all the same rights and freedoms as any private person. Taking public office does not invalidate your Charter rights.
To put it in even simpler terms: State officials cannot promote or hinder any religion or religious belief or practice, including non-religious beliefs and practices, unless there is a good secular reason for doing so (such as health or safety concerns). But state officials retain the same Charter rights and freedoms as any Canadian when they are making decisions outside of their official capacity – as private players. That means they are free to have a religion and to practice it – including wearing religious accessories like turbans and headscarves. Any actions they take as the state must be secular, but any actions they take as private players are subject only to the restrictions that apply to all private players. That includes dressing themselves, choosing what to eat, etc.; the state does not make those decisions, the person does.
Discrimination and reasonable accommodation
Alain Simoneau, the complainant in the Saguenay case, alleged that the city’s prayer discriminated against him. Did it?
In Canada, discrimination can only happen under one of the protected grounds. The protected grounds defined in the Charter are: race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (Note that the Charter specifically allows discrimination on those grounds if the goal is to ameliorate a disadvantage. For example, a government program to give grants only to visible minorities would not violate Section 15.) The Canadian Human Rights Act adds the following prohibited grounds: sexual orientation, marital status, family status, and pardoned convictions. (Some provincial human rights acts add further grounds. For example, the Ontario Human Rights Code adds gender identity and expression, ancestry, and more.) Discrimination happens whenever there is an exclusion, preference, or distinction based on one of those grounds that has the effect of nullifying or impairing a person’s rights.
There seems no doubt that being forced to sit through a prayer impairs Simoneau’s rights under the protected ground of religion (which includes freedom from religion, or freedom of conscience).
Now the Charter allows discrimination, in some cases. Section 1 allows for
reasonable limits… as can be demonstrably justified in a free and democratic society. To find out whether Section 1 applies, courts use the Oakes test:
- There must be a pressing and substantial objective.
- The means must be proportional:
- The means must be rationally connected to the objective;
- there must be minimal impairment of rights; and
- there must be proportionality between the infringement and objective.
It is hard to imagine what the objective behind a law that enshrines a religious practice might be, beyond simply favouring that religion. And that, of course, would be a preference under a protected ground (specifically: religion). So there doesn’t seem to be any way that such a law could be acceptable as a reasonable limit to people’s rights and freedoms.
So government prayer is simply not okay, but let’s try a thought experiment. Let’s pretend that government prayer is okay – that it doesn’t fail the Oakes test. In that case, there would still be discrimination, only now it would be reasonable discrimination (by virtue of passing the Oakes test). That doesn’t mean the end of the story, though. Even if all that were true, the state would still be obligated to provide a reasonable accommodation for those who don’t want to be part of the prayer.
There is a lot of confusion about what reasonable accommodation is. It’s not just arbitrarily hand-waving away rules that others have to follow. Reasonable accommodation doesn’t even happen unless some very specific criteria have been met.
- First, the law, rule, or practice that one is getting a reasonable accommodation for must cause discrimination. (Recall that discrimination exists whenever there is an exclusion, preference, or distinction based on one of the protected grounds that has the effect of nullifying or impairing a person’s rights.)
- Second, the discrimination must only exist for a good reason. That is, it must satisfy the Oakes, test: there must be a pressing and substantial objective, the discrimination must be rationally connected to that objective, and whatever impairment exists must be as minimal as possible.
- Third, the impairment caused by the discrimination must be nontrivial and substantial. You don’t get reasonable accommodation for trivial and insubstantial things.
So basically, you need a sane and secular law that nevertheless discriminates, and you need the discrimination to be nontrivial and substantial.
Only when you have all that can you even begin to discuss a reasonable accommodation for the people who are discriminated against. And, totally unlike what most people seem to think, once it has been decided that you deserve a reasonable accommodation, that doesn’t mean you simply get an exemption from the discriminatory law. Recall that the law exists for a good reason. (If it didn’t, it wouldn’t survive the Oakes test, and would be thrown out completely, so there would be no need for any accommodation.) Because the law exists for a good reason, you can’t simply go around handing out exemptions to it.
So accommodations are not exemptions. They are compromises. Both sides in the equation – the lawmakers and the discriminated persons – are expected to bend a little, to find a way that the intention of the rule can still be met while taking into account the rights of the discriminated people. Far from being an exemption, often this can leave the person receiving a reasonable accommodation with more rules and requirements than those who are simply following the original rule.
In the Saguenay case, the defendants argued that even if the prayer discriminated, and if the discrimination was nontrivial and substantial, they nevertheless provided a reasonable accommodation for those who didn’t want to take part: They could simply leave the room and return after the prayer.
Now, of course, since the prayer was not justifiable in any way, reasonable accommodation never really got serious consideration. You can’t get reasonable accommodation from an unreasonable law. Nevertheless, Justice Gascon took pains to note that the so-called “reasonable accommodation” was anything but reasonable… in fact, far from ameliorating the discrimination against those who didn’t want to take part in a prayer, it only made it much, much worse. Now people with different religious beliefs (or no religious beliefs) would have to stand up and be publicly identified by the entire audience as they left the room. Given that minority believers are already prone to victimization, this would be making it that much easier to target them.
So the city failed at just about every level in its argument. The prayer is indisputably discriminatory, it accomplishes nothing and there is no sane reason for the city to be praying at all, and the proposed accommodation of leaving the room while the prayer takes place is not reasonable.
Human rights complaints
The Canadian Human Rights Act and every provincial human rights act describes a process by which people who feel their rights have been violated can make a complaint.
Traditionally human rights complaints have been a matter for the courts. But the hard reality is: the courts have often been lousy at handling human rights complaints. Human rights is a very complex and specialized topic, and it is very, very rare to find someone who is both well-versed in human rights and a judge. And of course, requiring the courts to handle human rights cases takes up more precious legal resources, adding to the strain on our already overburdened court system.
Thus, the Canadian Human Rights Act (and all provincial human rights acts) called for the creation of administrative tribunals to handle human rights complaints: human rights tribunals. They would be staffed by specialists that know the field, and would take some of the burden off the courts. They would still be subject to judicial review, of course, so they couldn’t get out of control. All in all, a brilliant idea that has worked wonderfully.
That is, except for one small snag: the niggling question of just how much respect reviewing courts should be giving to the rulings of these administrative tribunals.
It’s a tricky problem. On the one hand, you don’t want these tribunals to have so much freedom that they effectively operate without oversight. On the other, if courts – and particularly, judges without expertise in the field – can simply shrug off their rulings, what’s the point of them?
One of the things the Supreme Court was trying to do in Saguenay was clarifying the rules for judicial review of administrative tribunals (such as human rights tribunals, as in Saguenay’s case). This was where the Court’s opinion split. The majority sided with a plan to give administrative tribunals deference right up to the point where their decisions have wide-scale impact. Justice Rosalie Abella dissented, preferring to give them deference so long as they were operating within their area of expertise.
Either way, the result is that the rulings of human rights tribunals will now have much more weight. Reviewing courts will only be allowed to verify that they’re reasonable, nothing more. This is a good thing for atheists and secularists, because while the (lower) courts have always been spotty, human rights tribunals have shown themselves to be tremendous allies of reason.
By all rights, Saguenay never should have happened, on many levels. Alain Simoneau should not have been treated like a second-class citizen by a bullying jackass Mayor, who wanted to use the city to promote his religious beliefs. Mayor Jean Tremblay’s associates should not have turned their back on their civic duty in favour of promoting their faith. The Québec Court of Appeal should not have presumptuously brushed aside the findings of the Tribunal des droits de la personne (TDP; or “Human Rights Tribunal”).
None of these things should have happened, but they did. The God-bothered kept crossing the line, over and over relentlessly, trying to use the state to force their religion on all Canadians. And in the end, it all blew up in their faces, magnificently.
First there was Alain Simoneau, just an ordinary citizen of Saguenay. He stood up to harassment, threats, and a celebrity mayor to defend his right to be treated equally. Even with the backing of Mouvement laïque québécois (MLQ), it wasn’t an easy task. Human rights heroes are almost never treated well by their society until long after their struggle has been won.
It took a toll on him, both financially and personally. He ultimately left Saguenay before the case was finally won in the Supreme Court. It’s not hard to understand why; Mayor Jean Tremblay was a celebrity, and he flagrantly used his power to humiliate and demonize Simoneau – even publicly identifying Simoneau to potential harassers – in a campaign that was castigated in every ruling at every level of the case.
Then there was Judge Michèle Pauzé, who was in charge of the TDP at the time of Simoneau’s complaint. Her job could have been done quite easily; at the time the Simoneau case was the second case in just a few years regarding government prayer. The previous case was in Laval, and Pauzé could simply have referred to that ruling and pretty much been done with it.
Instead, Pauzé took on the challenge with gusto. In many ways, her ruling is actually a more interesting read than the final Supreme Court ruling. Though it is brief and somewhat perfunctory, it nevertheless goes into great detail considering the nature of secularism, discrimination, and the specific facts of the Saguenay prayer and the shenanigans of the Mayor and his cronies. Ultimately she set up the decision in favour of secularism that – while it got brushed aside by the Québec Court of Appeal – was eventually reinstated by the Supreme Court.
And finally there was Supreme Court Justice Clément Gascon. At the time the Sagueany case was heard, Gascon was the newest member of the Court, and Saguenay was the first case for which he wrote the majority opinion. I’ve read some critiques that call his writing pedestrian, and complaining that the ruling lacks sparklingly quotable passages, but personally I would describe his style is engineered, and and actually quite subtle.
On the surface, Gascon describes the nature of state secularism very clearly, and very simply, in terms that are hard to misunderstand (unless you’re reading it with the intention of misunderstanding). But the real genius is in what he says between the lines. Without specifically identifying what he’s talking about, some of what he says seems quite cleverly calculated to forestall future challenges to state secularism – particularly those by proponents of “Québec Charter of Values”-style religious symbol bans.
Together these three, and the rest of the TDP and the Supreme Court, gifted Canada with a wonderfully progressive ruling, simultaneously stamping down entrenched religious privilege while opening the door to more multicultural diversity in the Canadian public sphere.