“Freedom OF Religion” Encompasses “Freedom FROM Religion”
Par Sarah D. Pinsonnault, avocate
By Sarah D. Pinsonnault
Last week, the Supreme Court of Canada confirmed, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, the state’s duty of religious neutrality by upholding the Québec Human Rights Tribunal’s finding that the recitation of prayer during the city’s council meetings interfered in a discriminatory manner with the rights of Mr. Simoneau, a self-proclaimed atheist, to exercise his freedom of conscience and religion. The state must therefore provide a neutral public space that is free from any preference for one religion over another and/or a particular school of thought which includes the non-observance of religion.
On behalf of the majority, Gascon J. wrote:
“ [T]he evolution of Canadian society has given rise to a concept of neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard. This neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief. It requires that the state abstain from taking any position and thus avoid adhering to a particular belief.
 By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally… [A] neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27 of the Canadian Charter. Section 27 requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter, but also with a view to promoting and enhancing diversity.
 […] The state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others. It follows that the state may not, by expressing its own religious preference, promote the participation of believers to the exclusion of non‑believers or vice‑versa.
 When all is said and done, the state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non‑believers in public life to the detriment of others. It is prohibited from adhering to one religion to the exclusion of all others. Section 3 of the Quebec Charter imposes a duty on the state to remain neutral in this regard. Today, the state’s duty of neutrality has become a necessary consequence of enshrining the freedom of conscience and religion in the Canadian Charter and the Quebec Charter.
 The Tribunal was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief […]”(references omitted)
Food for thought: The Québec Court of Appeal stressed the fact that the history of Québec society is deeply rooted in religion and that this cultural heritage (which includes references to religious symbols and practices) must be preserved.
With respect to this line of reasoning, the Supreme Court of Canada did acknowledge that the state’s duty of neutrality does not prevent it from celebrating and preserving its religious heritage but noted that tradition cannot be used to justify discriminatory practices:
“ With respect, what is in issue here is not complete secularity, but true neutrality on the state’s part and the discrimination that results from a violation of that neutrality. In this regard, contrary to what the Court of Appeal suggested, I do not think that the state’s duty to remain neutral on questions relating to religion can be reconciled with a benevolence that would allow it to adhere to a religious belief. State neutrality means — and the Court of Appeal in fact agreed with this (at paras. 76 and 78) — that the state must neither encourage nor discourage any form of religious conviction whatsoever. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. If that religious expression also creates a distinction, exclusion or preference that has the effect of nullifying or impairing the right to full and equal recognition and exercise of freedom of conscience and religion, there is discrimination.”
Returning to the Court of Appeal’s decision, in advancing the argument that certain religious practices must be preserved on the grounds of their historical meaning, Gagnon, J.A. wrote the following:
“ Indeed, things that were once closely linked to specific religious dogma have since become secularized. Given this new context, they cannot, in my view, be removed in the name of a draconian conception of State neutrality. What would be the point of such a result if these things, despite their original meaning, were merely passive witnesses to history? In short, the exercise would involve only drawbacks because it would add nothing more to the concept of neutrality.”
In viewing certain religious symbols and practices as now historical artefacts and traditions, thus void of their original religious meaning, one can wonder whether they can still be subject to the protection granted by the Québec and Canadian Charters with respect to freedom of conscience and religion.
Furthermore, it would be interesting to find out whether those who hold fervent religious views agree with this argument since the traditions they hold dear are being defended in a manner that divests them of their religious meaning.
To read this decision in its entirety, click here.