A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

An Easy Case

Why funding Catholic schools on terms not available to others is an obvious infringement of religious freedom

In Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, the Saskatchewan Court of Queen’s Bench held that funding Catholic schools, and no others, for educating students who do not belong to their religion is contrary to the guarantee of the freedom of religion in paragraph 2(a) of the Canadian Charter of Rights and Freedoms, and not justified under the Charter‘s section 1. In commenting on that decision, I wrote that this “is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.” To my enduring surprise, some of my friends disagree with this, so I will try to explain my views further.

Writing for Policy Options, Joanna Baron and Geoff Sigalet argue that in Saskatchewan the province’s duty of religious neutrality has to be understood in the context of “Saskatchewan’s Confederation compromise [which] entailed a built-in elevation of the status of Catholics” and required provincial funding of Catholic schools. In that context, allowing non-Catholic students to access these schools “does not violate a principle of religious neutrality — it is the definition of neutrality.” They add that “the Charter itself does not explicitly require state neutrality vis-à-vis religion” ― in contrast to the First Amendment to the U.S. Constitution, under which the funding of vouchers allowing students to attend religious schools has nevertheless been permitted. They claim, finally, that it is ironic that the Charter, which is supposed “to give individuals rights vis-à-vis the state”, ends up foreclosing the educational choices of non-Catholic students. Finally, they worry about the way in which students would be classified as Catholic or not to determine who is, and who is not, entitled to access Catholic schools.

In an Advocates for the Rule of Law post, Asher Honickman makes some similar points. Religious neutrality is only a judicial construction, and in any event not absolute. Determining who is Catholic enough to attend a Catholic school is problematic. Mr. Honickman adds that it would be discrimination to require “non-Catholics … to attend secular schools, while Catholics would have a taxpayer funded choice to attend either Catholic or secular schools.” While

the government could provide equal funding to all religious schools, but this would prove far too costly. The Charter is by and large a ‘negative rights’ document and the government should not have to break the bank to comply with its provisions.

In any event, since they receive public funding to cover their capital expenses, Catholic schools could charge non-Catholics cheaper tuition to any non-Catholic students who wished to attend, and the additional benefit of receiving funding to cover their individual education is too trivial to count as an infringement of neutrality.

I do not find any of this at all persuasive. Begin with the suggestion, admittedly never fully articulated, that we should not make too much of religious neutrality because it is not expressly referred to in the Charter. Justice Dickson, as he then was, rejected it in the very first religious liberty case R v Big M Drug Mart Ltd, [1985] 1 SCR 295. Dismissing an argument that the Lord’s Day Act was not contrary to the Charter‘s guarantee of freedom of religion because it did not include a proscription of religious establishment, he noted that “recourse to categories from the American jurisprudence” ― free exercise of religion and non-establishment ― “is not particulary helpful in defining the meaning of freedom of conscience and religion under the Charter” because these categories flow from “the wording of the First Amendment”. (339) They do indeed, and the wording is not accidental, as Michael McConnell explained in this excellent lecture.

The Charter only contains a single guarantee of religious liberty, and the question is whether its meaning in 1982 (on an originalist approach) or now ( on a living constitution one) includes state neutrality. The answer to this question is an emphatic yes, whatever one’s reference point. As Justice Taschereau wrote in Chaput v Romain, [1955] SCR 834, “[i]n our country, there is no state religion. … All religious creeds are set on an equal footing.” (840; translation mine.) As a statement of positive law, this was perhaps a tad optimistic while the Lord’s Day Act was still in force; but as a statement of what religious liberty, properly understood, meant by the 1950s (and indeed earlier) and still means, this passage remains unsurpassed in its forceful simplicity.

State neutrality is then, along with a rejection of religious coercion, one of the fundamental principles of paragraph 2(a) of the Charter. The Charter itself contains one  exception to this principle: section 29, which protects “rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” (The fact that the Charter’s framers thought it necessary to make this exception explicit suggests that they too understood neutrality to be the general principle.) Except insofar as they are “guaranteed by or under the Constitution of Canada”, the privileges of “separate” schools are subject to the general principle.

The constitution’s “built-in elevation of the status of Catholics”, in other words, is set at a precisely calibrated level. It permits the “discrimination” involved in allowing Catholics ― or, more precisely Catholics or Protestants, depending on who happens to be the minority ― a choice between public and “separate” schools, and immunizes it from Charter scrutiny. By necessary implication, it permits and even requires the state to distinguish between Catholics and others, however distasteful we might find the drawing of such distinctions. (That said, as Justice Layh found in Good Spirit, “proof of one’s Catholic identity is baptism in the Catholic tradition, commonly evidenced by a baptismal certificate” [17] ― not an especially intrusive inquiry, all things considered.) The constitution does not, however, permit conferring on Catholics them the further advantage ― whether it is a great or a small one ― of admitting and proselytizing to non-Catholic students at the public expense. It is not for the courts to upset this calibration that is quite clearly set by the constitution itself, whether or not doing so would be convenient or save money. Having found that the admission of non-Catholic students was not “guaranteed by or under the Constitution of Canada”, the Good Spirit court was quite correct to apply the principle of neutrality to it.

As I have been saying from the beginning, if the province of Saskatchewan does not like the outcome that non-Catholic students and their parents lose the (limited) measure of school choice that was available to them, the obvious solution is to provide more school choice on a non-discriminatory basis. This, in fact, is what the State of Ohio did in Zelman v Simmons-Harris, 536 U.S. 639 (2002), the First Amendment case on which Ms. Baron and Mr. Sigalet rely. As Chief Justice Rehnquist described the scheme at issue in his majority opinion, “[a]ny private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school” meets certain administrative requirements, educational standards, and does not discriminate. (645) The issue was whether the eligibility of religious schools for participation violated the First Amendment. The U.S. Supreme Court held that it did not, and the result would be the same under the neutrality principle of the Charter. But the Zelman-Harris court did not uphold, and would not have upheld, a similar scheme the participation in which was restricted to religious schools only, still to Catholic schools alone. If Saskatchewan want to include Catholic schools in a broader school choice programme, that would have been constitutionally permissible. It is not permissible to limit school choice to such schools alone.

It is not the Charter, then, that limits school choice in Saskatchewan in the wake of the Good Spirit decision, but the political choices made by the province’s legislature. Will it be too expensive to offer meaningful, non-discriminatory choice to students? We don’t know; the province has not, so far as I can tell, even considered the possibility, rushing to override the decision by invoking the Charter‘s “notwithstanding clause”. But whatever the amounts at issue, it will not do to say that it is better to offer a discriminatory benefit to some if we cannot offer the same benefit to all. The Supreme Court rejected this proposition in Schachter v Canada, [1992] 2 SCR 679, and rightly so. No one would accept that a province offer a tax cut to Catholics alone on the basis that it’s better to give one to some people than to none. The same reasons that would make that utterly unacceptable condemn the policy of subsidizing Catholic schools (beyond what is constitutionally required) and no others.

While some aspects of the Good Spirit case were difficult, the Charter issue that it presented was not. Once it is established that the education of non-Catholic students is not a constitutionally entrenched aspect of “separate” Catholic schools, it follows straightforwardly that it can only be subsidized on equal terms with those available to other schools, religious or otherwise. To conclude so is not to impose a new interpretation on constitutional text, but to apply principles that were recognized in Canada well before the Charter‘s entrenchment. Those who would depart from these principles in the name, ultimately, of financial expediency and administrative convenience should re-consider.

No Money for You

Can Saskatchewan fund non-Catholic students in Catholic schools? Raising government ire, a court says no.

A couple of weeks ago, in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, Saskatchewan’s Court of Queen’s Bench held that provincial funding for non-Catholic students of Catholic “separate” schools in the  province was unconstitutional. Saskatchewan’s government is upset, and has proclaimed its intention to invoke the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to nullify the effects of this decision. In this post, I will summarize the decision and briefly explain why I think it is correct. I will comment on the use of the Charter‘s override provision separately.

The constitution requires Saskatchewan to allow the formation of, and to provide equal funding for “separate” schools for Catholics and Protestants, whenever one of these two groups happens to be a minority in a given school district and if parents belonging to the minority group request it. The mechanics of this requirement are somewhat complex: section 17 of the Saskatchewan Act, 1905, which created the province from the North-West Territories, makes applicable to it a somewhat modified version of section 93 of the Constitution Act, 1867, which guarantee “right[s] or privilege[s] with respect to separate schools which any class of persons ha[d in 1905]” under the then-existing territorial law. Laws enacted in furtherance of this guarantee are constitutional and not subject to scrutiny under the Charter, because its enactment did not abrogate the guarantee. Any other provincial laws relative to education, including the “separate” schools, are subject to Charter scrutiny like all other legislation in Canada.

The case was a challenge by a public school board to the funding received by a Catholic one for non-Catholic students attending one of its schools. If this funding were not available, the students would have attended a school operated by the plaintiff, and the funding would have followed them there. The case raised two main questions. Is the funding of non-Catholic students attending Catholic “separate” schools part of the guaranteed rights or privileges? If not, is it contrary to the Charter? There were a couple of preliminary issues too: whether the plaintiffs had standing to sue, and whether the school at the centre of the proceedings, St Theodore, was a legitimate “separate” school despite the fact that most of its students were not Catholic. Justice Layh answered both of these questions in the affirmative, and I will say no more of them. The decision is 230 pages long, not too much of it superfluous. I will only focus on the key points here.

 

Justice Layh found that there was no constitutionally guaranteed right for a “separate” Catholic school board to receive public funding for educating non-Catholic students. Only “denominational aspects” of the “separate” schools were constitutionally protected from legislative interference. The aim of the guarantee was to preserve minority religious communities by allowing them to withdraw their children from the majority’s schools and so to avoid assimilation. Moreover, at the time of the guarantee’s entrenchment, Catholics viewed education jointly with non-Catholics with great suspicions, and while constitutional interpretation had to account for new social realities ― notably the fact that Catholics and protestants were no longer the only religious groups of any significance in Canada, making special protections for them anomalies ― it could not import theological developments, such as Catholicism’s greater openness to other religions ― that occurred since the Saskatchewan Act came into force.

As a result, the ability to educate non-Catholics could not be viewed as a “denominational aspect” of the functioning of Catholic schools; it was not essential to their functioning as Catholic institutions. Therefore it was not constitutionally protected. Nor did the requirement of non-discriminatory funding for “separate” schools extend to funding students from outside the religious community for which they were set up. The funding requirement served to protect the distinctive religious character of the schools, not the ability of outsiders to attend them. In short, the provision of funding of which the plaintiffs complained was not a constitutional requirement, but a legislative choice of the province.

This area of the law is quite complicated, and I cannot claim particular expertise on it. To me, however, Justice Layh’s reasons are largely persuasive. It will not come as a surprise to regular readers that I am very skeptical about his take on the role of social change in constitutional interpretation, as I might further explain in a future post, if time permits. But I do not think that this is material here. Justice Layh makes a compelling case about the originalist raison d’être of the constitutional protections for “separate” schools being to allow minority communities to stand on their own, and about there being no legal right to funding for non-Catholic students in 1905. A purely originalist analysis would not, I think, yield conclusions different from his.

Having concluded that the funding of non-Catholic students was not exempt from Charter scrutiny, Justice Layh turned to the plaintiff’s claims that it infringed the constitutional guarantees of freedom of religion and equality. Part of the respondents’ case on this point was that the plaintiff, not being a natural person, was not entitled to make such claims, since only individuals could hold religious beliefs or claim equality rights under section 15 of the Charter. Justice Layh dismissed this argument. In his view, although only an individual could claim that a generally neutral law had a disproportionate or discriminatory effect on him or her, anyone could argue that a legislative measure was unconstitutional on its face, as the plaintiff here was doing. I find this distinction dubious; once the plaintiff is granted standing to sue in the public interest, shouldn’t it be able to advance constitutional claims on behalf of others? Isn’t that the point of public interest standing? But nothing turns on this here.

Justice Layh found that funding non-Catholic students in Catholic schools ― and, importantly, not funding, say, non-Muslim students in Muslim schools or non-Jewish students in Jewish schools ― amounted a breach of the state’s duty of religious neutrality and to discrimination on the basis of religion. Neutrality means treating all religious groups equally, as well as not favouring religion over non-religion or vice versa. Providing money to Catholic schools so that they can educate non-Catholics, instructing them in Catholicism and thus “evangelizing” them, as well as creating goodwill in the community, without providing equivalent opportunities to other religious groups is not acting impartially, and is thus a breach of the Charter‘s religious freedom guarantee as explained, notably in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (which I explained and discussed here). It is also, ipso facto, discriminatory. I think this is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.

There remained the question of a possible justification of these infringements of Charter rights under section 1, as limitations “demonstrably justified in a free and democratic society”. Justice Layh found that no such demonstration had been carried out. Indeed, the provincial government had not even really attempted one. The defendant school division, for its part, argued that funding Catholic schools for students outside of their faith served to provide educational opportunities to all students, and choice to the parents. Justice Layh rejected these objectives, on the basis that they had nothing to do with the limitation of funding of non-denominational students (if I can be forgive this use of the term) to Catholic schools. Public schools could provide educational opportunities, while the objective of enhancing choice could not be advanced by an inherently discriminatory policy. While these objections seem to me to go to the “rational connection” stage of the section 1 test rather than to invalidate the objectives themselves, nothing turns on this. The objections themselves are well taken, and Justice Layh’s conclusion, correct.

In the result, Justice Layh declares that Saskatchewan’s legislative and regulatory provisions allowing funding of non-Catholic students in Catholic “separate” schools is unconstitutional. He adds that “[a]ppreciating that the implementation of this declaration will cause significant repercussions in the province, this declaration is stayed until June 30, 2018.” [476] The stay, I think, is self-evidently appropriate here, and this case should be kept in mind in any future discussions of suspended declarations of unconstitutionality.

As it works its way up the judicial hierarchy, Good Spirit School Division could also produce important rulings on the constitutional issues it addresses ― and I hope that appellate courts will pay attention to Justice Layh’s reasons, which strike me ― despite some reservations ― as generally very careful, well-argued, and perhaps above all lucid. But all of that is likely to be overshadowed by debates about the Saskatchewan government’s invocation of the “notwithstanding clause” to annul Justice Layh’s decision. I hope to say more on that in short order.

Follow Instructions

School prayer is unconstitutional ― even in Alberta and Saskatchewan

A couple of months ago, Benjamin Oliphant wrote, on the Policy Options blog, about a controversy over school prayer in Alberta: some schools still start their days with the Lord’s Prayer, which some parents oppose. Constitutionally, Mr. Oliphant pointed out, the matter is somewhat complicated. A Twitter discussion ensued, but I don’t think that anyone ever took the time to write a follow-up blog post. Now, according to a report in the National Post, the same issue arises in Saskatchewan, giving me an excuse for doing so, however belatedly. (I should note that the parent who is contesting the school prayer seems not to be making a constitutional case, but rather “believes the recital of the prayer may be harmful and has started a petition asking for amendments to” relevant legislation. I express no views on the prayer’s harm, and only consider its constitutionality.)

As Mr. Oliphant explained, on the one hand, courts have held, starting in Zylberberg v. Sudbury Board of Education, 65 OR (2d) 641 (On CA), that school prayer ― even if individual students are not obliged to attend it ― is contrary to the religious freedom guarantee of the Canadian Charter of Rights and Freedoms. On the other, the constitutionally entrenched legislation that created the province of Alberta ― and Saskatchewan as well ― protected “any right or privilege with respect to separate schools which any class of persons have at the date of the passing of [that legislation] … or with respect to religious instruction in any public or separate school.” That provision (section 17 in both the Alberta Act and the Saskatchewan Act) referred to The School Ordinance of the North-West Territories, which specifically provided that, despite a general ban on religious instruction in public schools except in the last half hour of a school day, it would “be permissible for the board of any district to direct that the school be opened by the recitation of the Lord’s prayer.” (Subs. 137(2)) Hence Mr. Oliphant’s question: does the long-standing principle that one part of the constitution (such as the Charter) cannot abrogate another (such as the Alberta Act or the Saskatchewan Act) immunize the recitation of the Lord’s Prayer in those provinces’ schools? )

The answer, in my view, turns on the meaning of the phrase “religious instruction” in section 17 of the Alberta Act and the Saskatchewan Act. If “religious instruction” includes the recitation of the Lord’s prayer, then section 17 presumably protects the right of the local school authorities “to direct” the recitation of the prayer, as part of the general protection of rights “with respect to religious instruction at any public school.” If, however, the prayer is not a form of “religious instruction,” then its recitation falls outside the scope of the protection granted by section 17.

Is, then, the recitation of the Lord’s Prayer “religious instruction”? A prayer is, as the Supreme Court recently had occasion to confirm ― against Québec Court of Appeal’s opinion to the contrary ― undoubtedly a religious exercise. But is it “instruction”? Note that, if a court called upon to decide the constitutional question adopted the originalist approach to constitutional interpretation which, I have argued, the Supreme Court’s majority recently took when discussing legislative bilingualism in Alberta in Caron v. Alberta, 2015 SCC 56, it would need to consider the meaning of “instruction” in 1905, when the Alberta Act and the Saskatchewan Act were enacted. Perhaps the meaning of the phrase has changed in the last century. But I rather doubt it in this case.

As a matter of ordinary meaning of the word in this context, it seems to me that a prayer is not instruction because it does not teach the students who hear it anything about religion. It is telling, I think, though not dispositive, that section 182(3) of the Saskatchewan’s Education Act, which authorizes the recitation of the Lord’s Prayer at the beginning of school day, specifies that it is to be recited “without comment or explanation.” That’s not how one would normally go about “instructing” the students in religion generally, or in the meaning or significance of the Lord’s Prayer specifically.

The legislative context in which the phrase “religious instruction” is used in The School Ordinance also suggests that it does not encompass the recitation of the Lord’s Prayer. The general provision on religious instruction is section 137 (or what would now be numbered as subsection 137(1)), which has the heading “religious instruction.” The exception for prayer is provided for separately, in subsection 137(2), under the heading “Time for the Lord’s Prayer.” For its part, the following section, under the (admittedly ambiguous) heading “Attendance not compulsory during religious exercise,” provides that “[a]ny child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section … if the parents or guardians do desire.” I think it is reasonably clear that that the idea is that the student is free to go home once the half-hour reserved for religious teaching at the end of a school day begins ― rather than leave the school as it is being “opened” by the recitation of the Lord’s Prayer, and then return.

As a result, I don’t think that the constitutional protection for “religious instruction” in the schools of Alberta and Saskatchewan extends to the recitation of the Lord’s Prayer. Unlike the actual teaching of religion, it is thus not immunized against review under the Charter. And it is quite clear what the outcome of such a review would be. The educational authorities in the Prairies ought to follow the same constitutional instructions that apply to their counterparts in Ontario and elsewhere, and get rid of the Lord’s Prayer.

Inutile ou inconstitutionnel?

En plus de s’attaquer à la liberté d’expression et à la primauté du droit avec leur projet de loi 59, le gouvernement du Québec et la ministre de la justice, Stéphanie Vallée, s’attaquent peut-être aussi à la liberté de religion avec le projet de loi 62. Peut-être, car ce texte législatif contient une exception qui pourrait en réduire l’effet réel à néant. Cependant, on peut supposer que son application, surtout dans l’environnement politique et social actuel, va bel et bien mener à des violations de la liberté de religion, droit pourtant protégé par l’art. 2(a) de la Charte canadienne des droits et libertés et l’art. 3 de la Charte des droit et libertés de la personne, alias la Charte québécoise.

Le projet de loi 62 contient bien des dispositions inoffensives, notamment les articles 4 à 6, qui énoncent et qualifient le devoir  de neutralité religieuse imposé aux fonctionnaires et autres employés de l’État. Ce devoir n’est pas nouveau, ce qui fait en sorte que l’adoption de ces dispositions est inutile mais, pour cette même raison, elle ne fera pas de mal. Il en va de même avec la plupart des critères édictés aux articles 10 à 12 pour, supposément, encadrer l’octroi d’accommodements religieux. À une exception près, sur laquelle je reviendrai, ces critères ne sont pas nouveaux ― et, pour cette même raison, il ne faut pas se faire d’illusion sur leur capacité à servir de « balises » aux accommodement. Les décisions, en cette matière, ne peuvent se faire qu’au cas par cas, et exigent la bonne foi de toutes les parties impliquées. Or, on ne génère pas la bonne foi à coups de législation.

Là où le bât blesse, cependant, c’est à l’article 9 du projet de loi. Les deux premiers alinéas en sont les suivants:

Un membre du personnel d’un organisme doit exercer ses fonctions à visage découvert, sauf s’il est tenu de le couvrir, notamment en raison de ses conditions de travail ou des exigences propres à ses fonctions ou à l’exécution de certaines tâches.

De même, une personne à qui est fourni un service par un membre du personnel d’un organisme doit avoir le visage découvert lors de la prestation du service.

Cette obligation vise, on s’en doute bien, les femmes musulmanes qui portent la burqa ou le niqab. On semble leur interdire de travailler pour l’État, et même d’en recevoir les services ― d’aller à l’école ou à l’université, de se faire soigner à l’hôpital ou même, je pense, de porter plainte à un poste de police. En d’autres mots, on semble les mettre hors la loi. Sauf que le troisième alinéa de l’article 9 crée une exception:

Un accommodement qui implique un aménagement à l’une ou l’autre de ces règles est possible mais doit être refusé si, compte tenu du contexte, des motifs portant sur la sécurité, l’identification ou le niveau de communication requis le justifient.

À première vue aussi, l’effet de cette exception pourrait être de carrément annuler les obligations apparemment imposées aux alinéas précédents. Aux moins deux des trois prohibitions catégoriques qui la qualifient ne sont pas nouvelles: les femmes qui portent la burqa ou le niqab acceptent déjà découvrir leur visage pour s’identifier, notamment pour des raisons de sécurité.

La grande incertitude concerne cependant la façon dont l’article 9 sera appliqué en réalité. Par exemple, va-t-on refuser systématiquement l’ « accommodement » que serait le port de la burqa ou du niqab sous prétexte qu’il empêche d’atteindre « le niveau de communication requis » (art. 9, al. 3), ou qu’il ne « respecte [pas] le droit à l’égalité entre les hommes et les femmes » (art. 10, al. 1, sous-al. 2) ou encore qu’il « compromet […] le principe de la neutralité religieuse de l’État » (art. 10, al. 1, sous-al. 3)?  En théorie, de tels refus systématiques iraient à l’encontre de l’alinéa 3 de l’article 9, qui dit bien qu’un accommodement « est possible ». En pratique, dans l’état actuel des esprits québécois, je ne suis pas optimiste. Et il y a aussi un problème plus général: en qualifiant la non-interdiction du port de la burqa ou du niqab comme un accommodement, oblige-t-on les femmes qui vont recevoir un service de l’État ― disons, en se présentant à l’urgence d’un hôpital ― de formuler une demande formelle? J’ose espérer que non, mais même si ce n’est pas le cas, le message que le projet de loi envoie aux personnes à qui cette femmes s’adresse est qu’ils lui font une faveur ― et qu’ils pourraient la lui refuser.

Si on refuse ces » accommodements », les contestations en vertu de l’une ou l’autre Charte seront inévitables. Et, selon moi, elles auront de très bonne chances de succès. Je crois qu’il serait aussi possible de contester la compétence de la législature du Québec à adopter le projet de loi 62, en soutenant que, de par son caractère véritable, il s’agit d’une loi portant sur la religion, un sujet qui relève du Parlement fédéral selon l’arrêt Saumur v. City of Quebec, [1953] 2 SCR 299. J’ai expliqué cet argument plus en détail ici et ici, s’agissant de la Charte de la honte proposée par le gouvernement péquiste. Dans ce billet, je me concentre sur l’analyse en fonction des Chartes.

Il est évident qu’interdire à une personne de recevoir un service à cause d’un vêtement religieux qu’elle porte est une atteinte à sa liberté de religion (et/ou une forme de discrimination fondée sur la religion). L’État serait tenu de justifier cette atteinte, en démontrant qu’elle sert un objectif urgent et réel, qu’elle est rationnellement liée à cet objectif, qu’elle est (à peu près) la moins sévère possible pour réaliser cet objectif et, enfin, que ses bienfaits dépassent ses effets négatifs.

Or, une telle démonstration ne me semble pas possible. L’objectif du projet de loi 62, selon l’article 1 de celui-ci, est de z favoriser le respect » de « la neutralité religieuse de l’État ». Or, la Cour suprême a bien spécifié dans son récent arrêt Mouvement laïque québécois c. Saguenay (Ville), 2015 CSC 16,

qu’un espace public neutre ne signifie pas l’homogénéisation des acteurs privés qui s’y trouvent. La neutralité est celle des institutions et de l’État, non celle des individus. [74]

Il n’y a donc pas de lien rationnel entre l’objectif de neutralité et l’interdiction, pour les individus qui reçoivent les services de l’État, ou même ceux qui travaillent pour celui-ci, de vêtements religieux. Le caractère irrationnel de cette interdiction devient encore plus clair lorsqu’on considère qu’elle ne s’étend qu’à quelques vêtements religieux, mais épargne la plupart des symboles religieux qui révèlent pourtant, de façon tout aussi évidente, l’appartenance religieuse des personnes qui les portent ou les affichent.

Avant de conclure, je reviens sur un autre élément du projet de loi 62 qui me paraît troublant: l’exigence, posée au premier alinéa de l’article 10, que tout accommodement religieux « respecte le droit à l’égalité entre les femmes et les hommes ». Je ne suis évidemment pas contre cette égalité. Cependant, les tribunaux ont toujours rejeté les hiérarchies de droits comme celle que cette disposition crée. Qui plus est, l’application concrète de ce critère risque de mal tourner. Par exemple, comme je le suggère ci-dessus, il risque d’être invoqué pour rejeter systématiquement la présence de certains symboles religieux jugés sexistes sans égard au sens que leur donnent les personnes qui les affichent. Il serait préférable, selon moi, de rappeler l’importance de l’égalité des sexes dans la considération des accommodements, mais sans en faire un critère qui prévaut automatiquement sur les autres.

Ainsi, dans la mesure où elle aura un impact réel l’obligation d’avoir le visage découvert, qui est la pièce maîtresse du projet de loi 62, porte atteinte à la liberté de religion des femmes qui porte la burqa ou le niqab. Cette atteinte n’a aucun lien rationnel avec l’objectif affiché de ce projet de loi. Il n’est pas impossible, par ailleurs, qu’en pratique, cette obligation ne soit pas imposée. Cependant, pour les raisons que j’explique ci-dessus, je ne crois pas que tel serait le cas. Cette disposition est donc inutile au mieux, et inconstitutionnelle au pire. Elle va certes moins loin que la Charte de la honte péquiste, mais tout comme celle-ci, elle est le fait d’un gouvernement qui fait de la petite politique sur le dos d’une minorité religieuse vulnérable.

What to Thump

This morning the Supreme Court heard the oral argument in Mouvement laïque québécois v. Saguenay (Ville de), a case on the validity, under the Québec Charter of Human Rights and Freedoms of a municipal by-law authorizing the mayor and those municipal councillors who wish it to publicly read a prayer just prior to the official start of business at municipal council meetings. An additional issue is the permissibility of an installation of religious symbols ― a sculpture of the Sacred Heart and a crucifix in the hall where the council meets. It is hard to tell which way the argument went. Indeed, my own impression, for what little it’s worth, is that at its conclusion, the Court was left with just as many questions as it had in the beginning, and the parties did not do much to help it answer the difficult questions the case presents.

Whether deliberately or because he did not know better, the appellants’ lawyer focused almost exclusively on the “small” questions ― the standard of review, the Court of Appeal’s dismissal of the appellants’ expert’s opinion, which had been accepted by the Human Rights Tribunal, which heard the matter in the first instance, and the effect of the prayer and the surrounding controversy on the individual complainant, Alain Simoneau. Even when Justice Lebel directly told him that the Court was interested in the broader questions of principle, the appellants’ lawyer more or less ignored him and stuck to his chosen themes. For him, the case is just an ordinary discrimination complaint and should be treated as such. The Human Rights tribunal heard the evidence and interpreted its home statute; it is entitled to deference; end of story. The big debate about state neutrality? That’s just incidental, he told Justice Lebel; and anyway, he added to an incredulous Justice Wagner, nobody is really against state neutrality or in favour of a state religion. The implications for the prayer at the House of Commons? Well, there are no municipal services being offered at the House of Commons, and the municipal legislation saying anyone is entitled to participate does not apply, so it’s not the same. The preamble to the Constitution Act, 1982, which mentions says that “Canada is founded upon principles that recognize the supremacy of God”? But the mayor of Saguenay wasn’t reciting the preamble! Do you have a test for us to distinguish cultural and religious manifestations, asked Justice Wagner. No, Justice, each case must be considered on its own facts.

The other parties, however, were more than happy to speak of general principles. They did not always succeed at staying at that level however.

The Canadian Secular Alliance, which intervened to support the appellants, tried to draw a line between official or state action, and the personal manifestations of faith by public employees or even officers. In the former area, religion is proscribed; in the latter it is permitted and indeed may have to be accommodated. It also pointed out that the freedom of religion jurisprudence has moved from a concern only with coercion to one with exclusion, even in the absence of coercion. Even if official prayer is not coercive, it is exclusionary, and thus impermissible.

The Canadian Civil Liberty Liberties Association, for its part, wanted to stress that even a non-denominational prayer is still a religious manifestation. But what’s the big deal with it, anyway, asked Justice Moldaver. Is there some sort of objective standard by which we can judge an interference with a person’s religious freedom? Shouldn’t we just put up with these little things? If the purpose of the state action is religious, the CCLA argued, then its effects are irrelevant. But the whole point, said the Chief Justice, is that we have trouble defining where the “religious” starts. And the CCLA, no more than the appellants, didn’t have a general test for the Courts. Triers of fact can handle that, in light of all the circumstances.

The respondents, for their part, spent a considerable amount of time discussing the meaning of laïcité and state neutrality, although they started by asserting that rather than these principles, it is their limits that are really at issue in this case. And limits there must be, lest we lose our collective frame of reference and end up lost in something called either “radical liberalism” or “unalloyed multiculturalism.” The state must not enforce religious observance of course, but it can have its own religious “colour,” which reflects its history and tradition. That’s what prayer by-law does. And as for the mayor doing the sign of the cross while reciting it, well, people do that sort of thing all time, even baseball players. But, Justice Wagner pointed out, the mayor isn’t just a baseball player. Doesn’t it matter, Justice Lebel asked, that the state not identify with a religion? But the Constitution says the Canadian state is founded on a recognition of the supremacy of God, the respondents argued. It is a theistic state. So long as the prayer is just theistic, it is within the bounds of what the state itself is. And its generically theistic text is what matters, not whatever gestures the mayor might make while reciting it. Anyway, the prayer by-law ― unlike the Lord’s Day Act that was struck down in  R. v. Big M Drug Mart,  [1985] 1 S.C.R. 295 ― is not coercive. And the fact public officials invoke the help of God isn’t at all unusual ― they all do it when they swear their oaths of office, even judges.

For the Evangelical Fellowship, the case is about the nature of a secular society and the place of religion in such a society. A secular society, it argued, is not one devoid of religion, or one where religion has been confined to the private sphere. It is non-sectarian ― but not non-religious. Justice Moldaver wondered, at that point, about a “prayer” by a secularist public official, expressing gratitude for the blessings of Canadian society and saying that none of them have anything to do with a God in which we don’t believe anyway. Would that be OK? It wouldn’t, the Fellowship asserted. But is that different from the Saguenay mayor’s expressing gratitude to God? Well, we cannot favour a specific worldview. So, Justice Abella asked, the state cannot  favour religion over non-religion? No, you have to look at the facts. We have prayers ― and the God Save the Queen, too ― at Remembrance Day ceremonies. And there can be a role for religion in the performance of public officials’ duties, so long these duties are carried out in a neutral fashion. To hold otherwise is to favour non-religion.

Finally, a group of Christian organizations argued that the Court, and everyone, could really have it both ways. Rights need not be weighed and made to prevail one over another ― they can be reconciled. Non-denominational prayer is a form of reconciliation; it allows the state not to sponsor religion while not excluding it. Banning the prayer leaves atheists and agnostics in control of the public square. Let’s all live in harmony instead, without winners and losers.

If there’s one thing we can be pretty sure of, it’s that this wish, or prayer, or whatever it was ― Justice Abella spent some time with the various lawyers wondering what the differences between wishes and prayers were ― will not be granted. Both sides have the same complaint: their opponents want to own the public square, and to exclude them. For the secularists, allowing even a non-denominational prayer to continue means ongoing exclusion, subjectively anyway. The only way reconciliation could happen would be for both sides not to take this whole business too seriously, as Justice Moldaver suggested ― but nobody, I suspect, will take up that suggestion.

And if there must be a winner and a loser, who should it be? There is an old litigation adage: if you have the facts, thump the facts; if you have the law, thump the law; if don’t have either, thump the table. It seems to me, however, that at the Supreme Court, the winning arguments will have a bit of everything ― fact-thumping, law-thumping, and table thumping. This morning, nobody had all three. The appellants, though they made a good case on the facts, and a half-decent one on the law, steadfastly refused to thump the table. The respondents shied away from the facts, which are not exactly favourable to them. And even the interveners could not bring it all together. The Court was looking for a general, thumping principle to dispose of the case ― some kind of demarcation between the the formerly-religious-but-effectively-cultural, the trivially-and-therefore-tolerably religious, and the impermissibly religious. It did not get that.

Cui Bono?

In a post published last week, Josh Blackman points to an important question that can help us think about the permissibility of public prayer ― not only prayer at municipal council meetings (the post’s immediate context), which the U.S. Supreme Court recently considered in Town of Greece v. Galloway (a case I briefly discussed here) and which the Supreme Court of Canada will consider in Mouvement Laïque Québécois v. City of Saguenay, but also other instances of public prayer. The question, which prof. Blackman argues is “almost outcome determinative,” concerns “the value of prayer.” As he points out, Justice Kennedy’s majority opinion in Town of Greece repeatedly emphasizes “the value of prayer as lending ‘gravity’ to the lawmaking process.” The dissent, while not rejecting prayer outright, does not seem to attach any particular value to it, and hence, says prof. Blackman, finds it easier to rule for those who object to the Town’s implementation of the prayer. The question of the “value of prayer” is indeed an important one. All the more so since this value can be not only positive (as the majority in Town of Greece and prof. Blackman himself seem to believe) or nil (as the Town of Greece dissenters might think), but also negative, even apart from cases of explicit or implicit coercion.

I have to say that I am much more skeptical than Justice Kennedy or prof. Blackman about whether prayer really has much of a positive value in setting the tone for the deliberations of a legislature or of a town council. There seems to be little evidence, for instance, that the prayers in the U.S. Congress (or in the Canadian Parliament) succeed at “remind[ing] lawmakers to transcend petty differences in pursuit of a higher purpose” (Town of Greece, p. 6), although I suppose one can always say that their petty differences might get even worse than they already are without the benefit of legislative prayers. And while I haven’t studied the issue, of course, I rather doubt that Saguenay’s municipal council does a much better job than those of neighbouring municipalities which do not open their council meetings with prayers, or indeed that its own performance improved in any noticeable way when the Mayor Tremblay went on his prayer crusade.

For my part, I suspect that public prayer is often the product of a familiar public choice problem: officeholders using the powers of their office to advance their personal interests and pet causes, not for the benefit of the public, but rather at its expense. Of course, such roads or bridges to nowhere, monuments to former leaders of the politicians’ parties, and assorted other white elephants are presented and defended as being in the public interest. But what they really do use the resources taken from the public as a whole ― or, “better” yet, from electoral minorities not part of the politicians’ coalitions ― for the benefit of the politicians, their friends, or their supporters. Of course, legislative prayer does not necessarily involve a transfer of public funds (the chaplains who led the prayers in Town of Greece were volunteers; the mayor of Saguenay hasn’t, so far as I know, got a pay raise to compensate him for his new task of leading the municipal council’s prayers). But the principle remains the same: religious majorities of municipal councils or legislatures set up a prayer regime which advances their conception of religion and/or of the duties of a religious official, and possibly also wins them the support of some religious voters, while imposing a cost, no less real for being emotional rather than pecuniary (and even for not reaching the threshold of coercion!) on religious minorities whose political support they can afford to dispense with.

This approach to public prayer ― asking what its value is, and paying attention to public choice concerns ― also helps explain why, to me at least, the prayers at Remembrance Day ceremonies (which, as I wrote here, the Supreme Court may want to distinguish from the municipal council prayers) do not seem to raise the same concerns as legislative prayer. Remembrance Day prayers are, arguably, not for the benefit of politicians (who might have had little to do with their inclusion in the ceremonies), but of the members of the Canadian forces, the veterans, and their families. And even if some members of the public who attend the ceremony do not like the prayers, that cost, in that specific context, does not matter. We do not attend (or watch) these ceremonies for our own sake, but to pay respect to the veterans and the victims of the wars. It is their day, not ours, and our own feelings are very much secondary.

That is not true in the case of municipal council meetings, however. If politicians are public servants, as they claim to be, then what matters is their prayers’ benefits and costs to the public. Officeholders should not be able to hide between specious claims that prayers set the right tone for their partisan squabbles, otherwise known as deliberations, while in reality favouring their religious feelings, or constituents, at the expense of dissenters.