2013 QCCA 936, 2013 QCCA 936

Unofficial English Translation Saguenay (Ville de) c. Mouvement laïque québécois 2013 QCCA 936 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-007328-112 (150-53-000016-081) DATE: May 27, 2013 CORAM: THE HONOURABLE BENOÎT MORIN, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. VILLE DE SAGUENAY, JEAN TREMBLAY APPELLANTS / INCIDENTAL RESPONDENTS – Defendants v.

MOUVEMENT LAÏQUE QUÉBÉCOIS, ALAIN SIMONEAU RESPONDENTS / INCIDENTAL APPELLANTS – Plaintiffs JUDGMENT [ 1 ] In a decision rendered on February 9, 2011, the Human Rights Tribunal concluded that the appellants Ville de Saguenay and Jean Tremblay infringed the rights of the respondent Alain Simoneau in a discriminatory manner, contrary to sections 3 , 4 , 10 , 11 and 15 of the Charter of human rights and freedoms . [ 2 ] It also declared Bylaw VS-R-2008-40 , adopted by the appellant, to be of no force or effect. [ 3 ] It further ordered that the appellant and the members of its City Council, its officers and employees, cease reciting the prayer referred to in Bylaw VS-R-2008-40 during the public debates of City Council, and ordered them to remove all religious symbols from each of the rooms where the Council meets, including a Sacred Heart statue and a crucifix. [ 4 ] Finally, it ordered the appellants, solidarily, to pay the respondent Alain Simoneau $15,000 in moral damages and $15,000 in punitive damage plus interest, additional indemnity, and costs, including the costs of the expert witness Daniel Baril. [ 5 ] For the reasons of Gagnon J.A., with which Morin J.A. agrees, and for the reasons of Hilton J.A., THE COURT: [ 6 ] ALLOWS the appeal without costs; [ 7 ] SETS ASIDE the decision of the Human Rights Tribunal rendered on February 9, 2011 ; [ 8 ] Dismisses the motion to institute proceedings without costs. [ 9 ] DISMISSES the incidental appeal without costs.

BENOÎT MORIN, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. Mtre Richard Bergeron and Mtre Marie-Ève Gagné

Cain, Lamarre and Mtre Claude-Armand Sheppard, counsel Robinson, Sheppard For the appellants / incidental respondents Mtre Luc Alarie Alarie, Legault For the respondents / incidental appellants Date of hearing: November 26, 2012 REASONS OF GAGNON, J.A. [ 10 ] The appellants, Ville de Saguenay (the “City of Saguenay” or the “City”) and Jean Tremblay (the “Mayor”), were granted leave by a judge of this Court [1] to appeal from a decision of the Human Rights Tribunal (the “Tribunal”) rendered on February 9, 2011. [2] [ 11 ] The Tribunal ruled that the respondent Alain Simoneau (“Simoneau”) was discriminated against in regard to his freedom of conscience and his freedom of religion as a result of a prayer recited by the Mayor at the beginning of every public meeting of City Council and also due to the presence of a Sacred Heart statue and a crucifix on display in certain rooms in which these meetings are held. [ 12 ] The respondents, Simoneau and the Mouvement laïque québécois (the “MLQ”), by way of their incidental appeal, seek an order against the incidental respondents for costs and expenses incurred in the principal appeal on a solicitor-client basis. [ 13 ] This case highlights the difficult and delicate question of the religious neutrality of the State.

Situated on the edge of sociology, philosophy, and law, the very idea of this concept requires the reconciliation of fundamental values recognized by our democracy, which contribute to the general well-being of citizens by their judicious implementation. [ 14 ] According to the respondents, the City and its mayor failed to respect their duty of neutrality, and this violation resulted in the compromise of Simoneau’s right to equality, guaranteed by

section 10 of the Charter of human rights and freedoms (the “Charter”). [3] Let us now consider this. The Context [ 15 ] Simoneau describes himself as non-religious. At the relevant time, he was a citizen of the City of Saguenay, an agglomeration resulting from the merger in 2002 of seven municipalities. It was only in 2006 that he became genuinely interested in municipal politics and attended a few public meetings of his local City Council.

These meetings were alternately held at the City Halls of the boroughs of Chicoutimi, Jonquière and La Baie. [ 16 ] The council chamber in the borough of Chicoutimi contains a Sacred Heart statue, which was placed there near the end of the 1970s. As for the council chamber in the borough of La Baie, a crucifix has been hanging on one of its walls since the early 1980s.

These are the religious symbols whose removal has been ordered by the Tribunal. [ 17 ] Before the opening of each Town Hall meeting, the Mayor recites a prayer, preceded by the sign of the cross accompanied by the phrase [ translation ] “in the name of the Father, the Son and the Holy Spirit”. This prayer ends with another sign of the cross and with the words [ translation ] “Amen”. Its recitation lasts approximately 20 seconds. Initially, there was no bylaw governing this practice.

The words spoken were: [ translation ] Almighty and eternal God, from whom all power and wisdom derives, we are gathered in your presence to ensure the welfare and prosperity of our city. Grant us, we beseech thee, the light and energy needed so that our deliberations may be destined to promote the honour and the glory of your holy name and the spiritual and material happiness of our city . [4] [ 18 ] During the prayer, some citizens would rise and join the Mayor, while others, including Simoneau, would remain impassive before this event. There were no particular instructions accompanying this ceremony.

During this time and throughout the Council meetings, the doors would remain open such that citizens could enter and leave the room as they wished. [ 19 ] Simoneau is of the view that religious symbols and the recitation of a prayer have no place in an environment dedicated to municipal democracy . He is not alone in this opinion.

He joined forces with a sympathizer , the MLQ , an advocacy organization dedicated to promoting complete secularism that advocates this value system for all branches of the State . [ 20 ] As the MLQ was prepared to support his cause, Simoneau authorized it to file a complaint in his name with the Commission des droits de la personne et des droits de la jeunesse (the “Commission”). [ 21 ] The Commission refused to conduct an investigation into the religious symbols. It expressed the view, however, that the

recitation of a prayer in the context described by Simoneau was likely to jeopardize his right to equality on the basis of freedom of religion. It declined, however, to bring this complaint before the Tribunal. Further to its decision, Simoneau and the MLQ decided to bring their case before the Tribunal themselves. [5] [ 22 ] After the respondents’ introductory motion was served, [6] the City attempted to reconcile the interests at issue by adopting, on November 3, 2008, Bylaw VS-R-2008-40 modifying internal Bylaw VS-2002-39 of the City of Saguenay [7] . It is worth reproducing the relevant part: [ translation ]

PREAMBLE WHEREAS in view of the powers granted to City Council under Order-in-council 841-2001 adopted by the Government of Quebec on June 27, 2001, and its amendments, City Council may, in its internal by-laws, determine any act within its jurisdiction that it has the authority and obligation to accomplish; WHEREAS there exists within the City of Saguenay a tradition to the effect that Council meetings begin with the recitation of a prayer, the text of which is reproduced below; WHEREAS the purpose of this tradition is to ensure decorum and highlight the importance of the work of the councillors; WHEREAS the members of Council, unanimously, want this tradition to continue and wish to pursue it on the basis of their individual rights and freedoms, in particular their rights to freedom of expression, conscience and religion; WHEREAS it is important to specify that the Council members and the public are in no way obligated to recite this prayer or attend its recitation ; WHEREAS it is important to ensure that members of the Council and of the public who do not wish to attend the recitation of this prayer may nevertheless attend the Council session in its entirety; WHEREAS in order to do this, it is necessary to amend internal Bylaw VS-2002-39 of the Council of the City of Saguenay; WHEREAS a notice of presentation of this Bylaw was duly given at the regular meeting of the Council held October 6, 2008; NOW THEREFORE , it is enacted as follows:

Section 1 – The

preamble of this Bylaw forms a part thereof as if it was set out at length.

SECTION 2 – Bylaw VS-2002-39 is amended to add

section 16.1 which provides the following:

section 16.1 – Once the chairperson of the meeting enters the Council deliberation room, the Council members who wish to do so may rise to recite the traditional prayer, the text of which is reproduced below. Almighty God , we thank You for the great blessings that You have given to Saguenay and its citizens , including freedom, opportunities for development and peace. Guide us in our deliberations as City C ouncil members and help us to be aware of our duties and responsibilities.

Grant us the wisdom , knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions . Amen. To allow Council members and the public who do not wish to attend the recitation of the prayer to take their places in the room , the chairperson of the meeting will declare the Council session open two minutes after the end of the recitation of the prayer. . [ 23 ] The City was hoping that this new prayer wording would accommodate the respondents in that all denominational references were removed.

As for the procedure surrounding the recitation , it remained the same , except for a two-minute period given to citizens wanting to leave the room during this time and allowing them to return before the opening of the session. [8] [ 24 ] Because the respondents filed their action before Bylaw VS-R-2008-40 was enacted, the respondents decided to amend their introductory motion to have this Bylaw, which they still consider discriminatory, declared of no force or effect. [9] The judgment under appeal [ 25 ] Once the Commission decided not to investigate the religious symbols , this aspect of the complaint could no longer be the subject of negotiations , thus depriving the appellants of a possible settlement . [10] Despite the jurisdiction ratione materiae issues raised by the failure to go through necessary steps ( investigation and negotiation) , [11] the Tribunal nevertheless chose to hear this question. [ 26 ] At the outset, it ruled that the recitation of the prayer set out at

section 16.1 of Bylaw VS-R-2008-40 and the display of religious symbols during public Council meetings are both displays of denominational aspects derived from Catholicism. [ 27 ] Next, it held that these references excluded persons with other moral convictions. On this subject, it wrote: [ translation]

[250] …Given the findings resulting from the analysis of the religious nature of the prayer and the symbols, the Tribunal is of the view that the use of public power in order to display or convey a particular faith has the effect of imposing values and religious beliefs and practices on people who do not share them. In so doing, the City and the Mayor are favouring one religion over another, whereas under its duty of neutrality, the State should refrain from intervening such that a preference is exercised. [ 28 ] The Tribunal continued its analysis under sections 3 and 10 of the Charter .

It determined that Simoneau’s nonbelief was sincere. Moreover, it ruled that the prayer and the display of religious symbols breached the duty of religious neutrality imposed on the appellants and that these failings significantly infringed Simoneau’s freedom of conscience and religion. [ 29 ] After rejecting the defences raised by the appellants , the Tribunal found that the reconciliation exercise provided for in

section 9.1 of the Charter was of no assistance. It also stated that accommodation is not possible when the neutrality of the State is at stake: [ translation] [301] Due to the very nature of the freedom that the right to equality is combined with here , no accommodation would be able to actually guarantee the religious equality of the citizens.

When the right to equality is combined with the State’s duty of religious neutrality , the duty to provide reasonable accommodation arises as a negative requirement that is unique in its ability to ensure, in such a context , the equality of all in the exercise of freedom of conscience and religion.

Therefore, to ensure the religious equality of all citizens, regardless of their beliefs in this area, State officials gathered together for a political meeting held in a public space cannot fulfill their legal obligations other than by completely abstaining from praying and displaying religious symbols. [ 30 ] Finally, t he Tribunal declared Bylaw VS- R-2008-40 to be of no force or effect. It ordered the members of City Council, its officers and employees as well as the Mayor to cease reciting the prayer at public meetings.

It also ordered the City to remove all religious symbols from each of the rooms in which the City Council holds public meetings . It also ordered the appellants to pay Simoneau $15,000 in moral damages and an additional $15,000 in punitive damages for the unlawful and intentional nature of the discrimination that he suffered. [ 31 ] Although of the view that it had jurisdiction to award extrajudicial costs, the Tribunal dismissed the respondents’ application to this effect, ruling that the appellants did not conduct themselves in a manner that was abusive or contrary to the objectives of the legal system.

Grounds of appeal [ 32 ] The appellants complain that the Tribunal gave the concept of State neutrality an overly broad meaning for the purposes of its

interpretation of Bylaw VS- R-2008-40 and attributed excessive significance to the religious symbols . In any case, they argue that these displays are justified when analyzed in light of

section 9.1 of the Charter [ 33 ] The other grounds of appeal relate to the nature of the orders made by the Tribunal and the awards of moral and punitive damages . These are alternative grounds that I will discuss briefly at the end of my analysis. [ 34 ] As for the incidental appeal, it deals only with the respondents’ right to claim extrajudicial costs.

Analysis The standard of review [ 35 ] Since this is an appeal from the decision of a specialized tribunal, it is useful to state from the outset the standard of review applicable in this case . [ 36 ] This Court recently addressed this issue in Association des pompiers de Laval c. Commission des droits de la personne et des droits de la jeunesse , [12] a case dealing with the discriminatory nature of certain clauses of a collective agreement .

Bich J.A. wrote : [ translation] [32] … The degree of expertise of the courts in regard to human rights is not less than that of the Tribunal, and it seems clear that, while providing a special route for victims of discrimination, the legislator did not intend to prevent them from calling on the ordinary courts. In fact, the decisions of the Tribunal can be appealed, with leave, under

section 132 of the Charter , which appeal is subject to the rules of the Code of Civil Procedure according to

section 133 of the Charter .

The fact that the Court also hears appeals from the lower courts on this subject matter, allows it to ensure the harmonious and coherent development of this area of the law, which consists, as in this case, of questions of law of public interest and importance to the entire legal system. [33] A ll of this, despite the presence of a privative clause protecting the decisions of the Tribunal (section 109 of the Charter ), clearly favours the application of a standard of review similar to that applicable to appeals from the judiciary, at least in regard to questions of law of general importance .

In such cases, the few Supreme Court decisions related to the decisions of the Tribunal seem to have opted , in practice, for this standard, confirmed by Canada ( Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) . Without a doubt, as this decision demonstrates, not every decision of a human rights tribunal ruling on a question of law will be subject to the standard of correctness , which will apply, however, when the question is significant for the legal system and foreign to its area of

expertise. A similar question is at issue here , in respect of which the Tribunal is not vested with an exclusive mission in the matter and does not have any particular expertise in relation to the courts. [Emphasis added; references omitted.] [ 37 ] T he issue in this appeal deals primarily with the religious neutrality of the State. It is a matter of importance to the legal system over which the Tribunal does not have exclusive jurisdiction.

G iven the nature of the principal issue raised in this case and the consequences that its response entails, I find that there is no need to pay any particular deference to the expertise of the Tribunal . It is thus a ccording to the standard of review of correctness that this appeal must be must be decided . The relevant legislative provisions [ 38 ] Mr. Simoneau, the principal complainant in this case, describes himself as non- practicing and a non- believer.

He was originally Catholic, but in order to publicly renounce the teachings of the Roman Catholic Church , he committed apostasy on January 15, 2007 . [ 39 ] He argues that the various displays that confront him (prayer and religious symbols) in the public municipal area are contrary to his moral convictions. He claims to be a victim of a prejudicial distinction caused by the appellants and invokes the protections of the Charter . I will reproduce the principal provisions relevant to this appeal: 3.

Toute personne est titulaire des libertés fondamentales telles la liberté de conscience, la liberté de religion, la liberté d'opinion, la liberté d'expression, la liberté de réunion pacifique et la liberté d'association. 3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. 4. Toute personne a droit à la sauvegarde de sa dignité, de son honneur et de sa réputation. 4.

Every person has a right to the safeguard of his dignity, honour and reputation. 9.1 Les libertés et droits fondamentaux s'exercent dans le respect des valeurs démocratiques, de l'ordre public et du bien-être général des citoyens du Québec. La loi peut, à cet égard, en fixer la portée et en aménager l'exercice. 9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well- being of the citizens of Québec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law. 10.

Toute personne a droit à la reconnaissance et à l'exercice, en pleine égalité, des droits et libertés de la personne, sans distinction, exclusion ou préférence fondée sur la race, la couleur, le sexe, la grossesse, l'orientation sexuelle, l'état civil, l'âge sauf dans la mesure prévue par la loi, la religion, les convictions politiques, la langue, l'origine ethnique ou nationale, la condition sociale, le handicap ou l'utilisation d'un moyen pour pallier ce handicap. Il y a discrimination lorsqu'une telle distinction, exclusion ou préférence a pour effet de détruire ou de compromettre ce droit 10.

Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. 11.

Nul ne peut diffuser, publier ou exposer en public un avis, un symbole ou un signe comportant discrimination ni donner une autorisation à cet effet. 11. No one may distribute, publish or publicly exhibit a notice, symbol or sign involving discrimination, or authorize anyone to do so. 15. Nul ne peut, par discrimination, empêcher autrui d'avoir accès aux moyens de transport ou aux lieux publics, tels les établissements commerciaux, hôtels, restaurants, théâtres, cinémas, parcs, terrains de camping et de caravaning, et d'y obtenir les biens et les services qui y sont disponibles. 15.

No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there. 44. Toute personne a droit à l'information, dans la mesure prévue par la loi. 44. Every person has a right to information to the extent provided by law. [ 40 ] Before turning to the analysis of the rules governing the religious neutrality of the State , I must deal with the expert evidence

accepted by the Tribunal and reiterate the criteria for its admissibility and the assessment of its probative value . The expert evidence [ 41 ] The outcome of the trial was based in part on the true meaning to be given to the prayer recited by the Mayor and the actual scope of the religious symbols placed in two council chamber s , the whole as analyzed through the lens of the City’s duty of neutrality . [ 42 ] In this case, it was relevant for the Tribunal to be properly instructed on the concept of secularism applicable to public bodies.

Determinations surrounding this complex idea were largely dependent on technical evidence where the sciences of anthropology and theology were omnipresent . [ 43 ] The appellants called two experts, Solange Lefebvre, doctor of theology, who holds a diplôme d'études approfondies in social anthropology and ethnology, and Gilles Bibeau, doctor of anthropology. The Tribunal authorized Mr.

Daniel Baril, who holds a master's degree in anthropology, to act as an expert for the respondents despite the fact that his qualification as an expert was highly contested. [ 44 ] This witness ended up playing a decisive role in the outcome of the case, and the Tribunal’s judgment is largely based on his opinion. [13] [ 45 ] The Tribunal had to assess the credibility of this witness and rule on the probative value of his opinion.

It never did carry out this exercise, although it undertook to do so when it declared him to be an expert. [14] Instead, it chose, without any real explanation , to purely and simply adhere to his opinion . [ 46 ] The expert, in the context of his or her role of assisting the court to better understand the complex aspects of technical evidence , must act with complete impartiality. In Prometic Sciences de la vie Inc. v.

Banque de Montréal, Thibault J.A. wrote: [15] [ translation] [57] With respect to the expert’s impartiality, it is important to mention that a deficiency may affect the probative value of his or her testimony, such that, in certain cases, he or she may be disqualified as an expert: [ translation] Impartiality – The expert must be impartial. The expert’s role is to assist the court and not to act as the attorney of one of the parties. Moreover, the probative value of expert testimony is weaker when it is given by an attorney, a representative, or an employee of a party.

That said, the sole fact that an expert witness happens to be an employee of the party whose position he or she is supporting or that he or she presented a proposal to one of the parties to remedy the damage does not disqualify him or her. Similarly, the mere fact that the expert has in the past acted on behalf of the opposing party does not disqualify him or her from acting as an expert witness for the other party.

Further, the courts have at times rejected the testimony of an expert who was not impartial. [Jean-Claude Royer, La preuve civile, 3rd ed., (Cowansville, Que : Yvon Blais, 2003) at 300] . [ 47 ] This impartiality is assessed by the ability of the expert to maintain a certain distance vis-a -vis his or her client and the position that client is defending.

In so doing, his involvement with the evidence must be characterized as an "objective , credible and justifiable " approach. [ 48 ] I would add that the expert’s impartiality must be such that the opposing party does not doubt that the divergent position taken by this witness is based on an objective opinion, the accuracy of which is not obscured by any conflict of interest or any kind of animosity , whether ideological or personal . [ 49 ] Although it is well recognized that the qualification of the expert and the assessment of his or her testimony are at the forefront of the trial judge’s discretionary power , the fact remains that this Court has the duty to intervene , when warranted by circumstance , if it is established that there has been a palpable and overriding error on this issue . [16] [ 50 ] I am firmly of the view that the witness Baril does not meet the requirements of objectivity and impartiality that are indispensible to the status of expert called upon to testify in a court of justice.

Also, the probative value of his opinion seems much too low to play a decisive role in the outcome of the case . I have come to this conclusion for the following reasons: - The witness Baril, like Simoneau, is a member of the MLQ, co-plaintiff at first instance.

He is also one of the founders of this movement. - The witness Baril has acted as President for the movement and, at the time of the first-instance proceedings, he was its Vice- President. - The witness Baril advocates for the complete secularization of the State, [17] as does the MLQ. - The witness Baril has in the past personally brought an action against the City of Outremont seeking an order that its Council cease reciting a prayer before each of its meetings. [18] - The witness Baril has also asked the ministre des Affaires municipales et des Régions to ban prayers from municipal assemblies. - The witness Baril adheres to the “Brights” school of thought. [19] - Before the respondents instituted their action, the witness Baril characterized the Mayor as a “bigot” in an

article published in the journal Cité Laïque . [20]

- Simoneau and the MLQ claim extrajudicial fees as punitive damages from the appellants and there is an agreement between them to remit a portion of the extrajudicial damages claimed ($150,000) to this movement in the event that Simoneau is successful. [ 51 ] A well-informed person , aware of the duty of impartiality that must animate any expert called to appear before a court, would easily agree that the witness Baril lacked the necessary perspective to act in this case. The association , of which he was V ice-President at the time of the proceedings, has a financial interest in the outcome of this case.

He himself is the propagandist of a well-established ideology and does not hesitate to personally institute an action against a city for its actions that he considered to be contrary to his values. [ 52 ] When a strong impression emerges from the evidence that the expert has in fact taken on the case of one of the parties as his or her own, this signifies that the expert’s role has transformed from neutral advisor, which the expert is supposed to be , to that of the attorney of one of the parties .

This is what has happened to the witness Baril, who, for these reasons, was not qualified to serve the interests of justice in this case. [ 53 ] Finally, it seems to me that the postgraduate university training of the experts Lefebvre and Bibeau, their respective careers, and their numerous publications command that we pay particular attention to their opinion. [ 54 ] If the Tribunal had undertaken a review of the grounds for disqualification of the witness Baril [21] and assessed the probative value of his opinion, as it said it would, it would have had no choice but to exclude this evidence.

In light of the foregoing, this witness should not have been qualified as an expert [ 55 ] These comments will be taken into account when I review the effects of prayer and religious symbols on the neutrality of the City. Freedom of conscience and religion and the religious neutrality of the State [ 56 ] As it can be advantageous in certain cases to determine the coercive aspect of the impugned measure before assessing its impact on the right to equality referred to in

section 10 of the Charter , and since this is a case that lends itself to this method, I will now endeavour to analyze this aspect of freedom of religion , i.e. the religious neutrality of the state.

This exercise requires that we consider the inevitable interaction between this duty and the other fundamental values ​​invoked by Simoneau, and attempt to reconcile these two realities [ 57 ] It will not be necessary, however, to examine the definition of what constitutes religion or discuss Simoneau’s sincerity in the opinions that his conscience dictates as the appellants concede that he is an atheist and recognize his loyalty to this school of thought . [ 58 ] That said, I acknowledge at the outset that the "fundamental freedoms" of conscience and religion must be given a generous

interpretation promoting respect for individual conscience . These freedoms , however, must be exercised in harmony with the other fundamental values ​​protected by the Charter and in accordance with the general welfare of all citizens. A simpler way to express this statement of principle would be that the rights of one person end where those of an other begin . [ 59 ] Freedom of religion exists in two distinct forms.

The first , characterized in case law and commentary as the positive aspect doctrine [22] is essentially the recognition that every person has the right to hold religious beliefs and to profess them openly .

The second is expressed in a negative form in that it is forbidden to impose coercion or constraint upon the choice to act in accordance with one’s conscience or to impose a religious choice. [ 60 ] In its negative form , freedom of religion enshrines the principle of the separation of religion and the State , which includes the various agencies through which government action is exercised. [23] [ 61 ] Although case law [24] and commentary [25] have addressed the issue of State neutrality in specific contexts (the Lord's Day Act , zoning regulations, curriculum, and work organization) , this concept, in some respects , remains poorly understood and difficult to apply given the various freedoms that are likely to interact with each other . [ 62 ] Without specific guidance, we must rely on the framework governing this concept.

Although he expressed the dissenting view in Lafontaine , the following observations of LeBel J. were not challenged by the majority and in my opinion remain a valid reference: [67] Since then, the appearance and growing influence of new philosophical, political and legal theories on the organization and bases of civil society have gradually led to a dissociation of the functions of church and state; Canada’s demographic evolution has also had an impact on this process, as have the urbanization and industrialization of the country.

Although it has not excluded religions and churches from the realm of public debate, this evolution has led us to consider the practice of religion and the choices it implies to relate more to individuals’ private lives or to voluntary associations (M. H. Ogilvie, Religious Institutions and the Law in Canada (2nd ed. 2003), at pp. 27 and 56). These societal changes have tended to create a clear distinction between churches and public authorities, placing the state under a duty of neutrality.

Our Court has recognized this aspect of freedom of religion in its decisions, although it has in so doing not disregarded the various sources of our country’s historical heritage. … [26] [ 63 ] The duty of neutrality may only be fulfilled through a delicate but inevitable balance between the common good that the State is supposed to defend, which includes the preservation of its cultural heritage, and the right of each person to the respect of his or her moral beliefs. [ 64 ] T here is no such thing in Quebec as a charter of secularism .

In the absence of an official statement of principle on the values ​​ that the State intends to protect in the context o f its duty of neutrality , we must stick to the liberal rule that a religiously neutral State essentially means that no religious view is imposed on its citizens and that its government action, in all its forms, remains truly free from any influence of this kind. [ 65 ] This objective does not require that society be sanitized of all religious reality , including that which forms part of its cultural

history . Moreover, in this regard, it should be recognized that some of the historical values ​​of Quebec society remain compatible with current values said to be neutral and universal. [ 66 ] The homogeneity, or even the exclusivity, that some claim to be an accurate reflection of the concept of religious neutrality, includes not only attributes that are not easily reconciled with values ​​espoused by a society that is open to cultural diversity, but what is more, they seem to be at odds with the rule of constitutional

interpretation that social changes are to be analyzed in accordance with the values ​​and political traditions of the society in which they occur. With the agreement of Rothstein J., LeBel J. reiterated this principle in the concurring reasons he wrote in R. v.

N.S : [27] [72] … The Constitution requires an openness to new differences that appear within Canada, but also an acceptance of the principle that it remains connected with the roots of our contemporary democratic society. [ 67 ] This idea had already been set out in Oakes [28] by Dickson C.J., who then stated that the Canadian Charter of Rights and Freedoms (the " Canadian Charter ") [29] stems from a history and an old tradition, which must be considered when discussing their impact on contemporary realities. [ 68 ] The theory of the "living tree" , expressed in Oakes , should also be applied to matters falling within the purview of the Quebec Charter .

While the history of Quebec society, including its symbolic references , must not impede currents of thought that are different from those that originally animated it, we cannot ignore its heritage without running the risk of cutting off the foundations that shaped its evolution.

In this sense , absolute State neutrality does not seem possible from a constitutional point of view . [30] [ 69 ] Also , according to a "philosophical" approach advocated by some, the claim that the State should practise abstention in religious matters seems to contradict its duty to preserve its history, characterized here by an interconfessional heritage . [ 70 ] 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. [ 71 ] The following extract highlights the pitfalls arising from an ideology that leaves no room for the reconciliation of the values ​​ involved : If secularism or agnosticism constitutes a position, worldview, or cultural identity equivalent to religious adherence, then its proponents may feel excluded or marginalized when the state supports even the most ecumenical religious practices.

But by the same token, the complete removal of religion from the public sphere may be experienced by religious adherents as the exclusion of their worldview and the affirmation of a non-religious or secular perspective. . . . . . . Ironically, then, as the exclusion of religion from public life, in the name of religious freedom and equality, has become more complete, the secular has begun to appear less neutral and more partisan. With the growth of agnosticism and atheism, religious neutrality in the public sphere may have become impossible.

What for some is the neutral ground on which freedom of religion and conscience depends is for others a partisan anti-spiritual perspective. [31] [ 72 ] There is no issue here of circumventing the State’s neutrality by maintaining practices that would subtly indirectly do that which is prohibited by the Charter .

Instead, we should affirm that the contextual analysis requires taking into account religious diversity and each person’s moral beliefs and reconciling this requirement with the cultural reality of the society, including references to its religious heritage. [ 73 ] In 2011, the Grand Chamber of the European Court of Human Rights had to rule on a case in which a private party claimed that the presence of crucifixes in the classrooms of some public schools in Italy was incompatible with the principle of secularism that prevails in that country. [32] [ 74 ] The Court , while reiterating the idea that the member States of the Council of Europe had a duty to ensure , by remaining neutral and impartial, the exercise of various religions, cultures and beliefs , did not fail to note the influence of historical memory on the cultural evolution of a society.

Judge Bonello wrote in his concurring opinion : 1.1 A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that “customs are not passing whims.

They evolve over time, harden over history into cultural cement.

They become defining, all-important badges of identity for nations, tribes, religions, individuals” . [33] [Reference omitted.] [ 75 ] This decision highlights the importance of taking into account the cultural reality of the society in which fundamental rights are invoked, when considering issues related to the implementation of these rights. [ 76 ] I am inclined, for the purposes of this appeal, to adopt the concept of “ benevolent neutrality ” [34] used by the author José Woehrling to attempt to better define the parameters of the State’s duty of religious neutrality.

According to this author, benevolent neutrality is expressed by the respect of all religions , placed on equal footing , without either encouraging or discouraging any form of religious or moral conviction relating directly or indirectly to atheism or agnosticism. [ 77 ] The idea of “ benevolent neutrality ” is grounded in the vocabulary used in

section 9.1 of the Charter and in the words of LeBel J. in Lafontaine :

69. …The diversity of opinions and convictions requires mutual tolerance and respect for others. Freedom of religion is also subject to limits necessary “to protect public safety, order, health, or morals. ... [35] [References omitted.] [ 78 ] It was also affirmed by Deschamps J. in S.L. v.

Commission scolaire des Chênes : [36] [32] Therefore, following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected. [ 79 ] I conclude from the foregoing that complete secularism is not part of the fundamental protections enumerated in the Charter nor does this idea underlie the negative form of freedom of religion.

On the contrary, the principle of S tate neutrality implies that anything that could be associated with a form of religious expression , without being banned , must remain firmly subordinate to the fundamental values ​​protected by the Charter , including freedom of religion and conscience. Application to the facts of this case The prayer [ 80 ] Some might question the actual usefulness of

section 16.1 of Bylaw VS- R-2008-40 for municipal purposes . But the answer to this question does not resolve this appeal. We are not here to discuss the relevance of this provision, nor its legality , but to decide whether the recitation of the prayer contained in this Bylaw by the Mayor infringes, in a discriminatory manner, Simoneau’s freedom of conscience and religion . This is in fact the question that the Court found necessary to address during the first phase of its study. [37] [ 81 ] The Tribunal could not rely solely on the subjective

interpretation of the parties to establish the true scope of the prayer. This is why the Mayor’s opinion in regard to the importance he attributes to this prayer is, at best, of relative probative value . [ 82 ] It is precisely for this same reason that the opinion of the witness Baril is of little use in this context.

The Tribunal could not, in any event, accept his theory as his vision of State secularism is more akin to a form of absolutism, the implementation of which would make it virtually impossible to reconcile the different values protected by the Charter . [ 83 ] That said, the other two expert witnesses heard at trial made a significant contribution to the debate , without the Tribunal formulating determinative criticisms in regard to their impartiality and the probative value of their opinion. [ 84 ] First, there is the expert report of the theologian Solange Lefebvre, who expressed the following in regard to the prayer at issue: [ translation] In this case, my reading of the text of the prayer reveals, in my view, that this is first and foremost the councillors’ prayer and not that of the citizens.

Moreover, it is not a prayer suitable only for Christians.

It is part of a theistic modernity that encompasses a superior being as a reference and basis for free and democratic States. ... [38] [ 85 ] She added: [ translation ] … In the present context, interpreting attachment to a prayer as evidence of the submission of those in authority to a higher power is abusive and does not take into account so-called religious modernity , i.e., the creation of the meaning by the individuals themselves . … It seems to me that the principle function of the new prayer is to solemnize the opening of the meeting and reiterate the broad moral ideals of governance. [ 86 ] The following passage, which seems to sum ​​up her opinion on the matter, is also worth mentioning : [ translation ] Upon reading Mr.

Simoneau’s testimony, the problem seems to me to be one of ideological divergence rather than one of discrimination. The question that Mr. Simoneau would like this Court to answer is which concept of modern politics is best for the governance of the city (see the examples I have given above). T he only relevant question, however, is whether the prayer, as it is recited in the City of Saguenay , complies with the provisions of the Charter of Rights and Freedoms . Does the Charter of Rights and Freedoms require the systematic elimination of all religious symbols and religious expressions of heritage ?

If this is the case , I think I can say without a doubt that Quebec is an exception in the West. [ 87 ] The other expert heard by the Tribunal is the anthropologist Dr. Gilles Bibeau . Asked to comment on the same subject , he concluded: [ translation] In conclusion, the prayer recited is appropriate for a large number of religions and is recited in a context that cannot be characterized as ritualistic, much less as an identity ritual. There is no question, as Mr.

Baril contends, of "higher symbolic functions of the human being ... implementing profound identity mechanisms, such as a sense of social belonging." This is basically the perfect example of where the values ​​of tolerance and openness to diversity that are necessary for life in a society like

ours should prevail. … Choosing to stay outside while the prayer is being recited could certainly be regarded as an insubstantial and trivial inconvenience and could not, in any case, from an anthropological perspective, be prejudicial to one’s cognitive functions , as Mr. Baril would suggest . [39] [ 88 ] I take from the opinions of these experts that the values ​​expressed by the prayer at issue are universal and cannot be identified with any particular religion.

According to these experts, this prayer is consistent with modern theistic doctrine, open to some reasonable non-invasive and religious particularities . [ 89 ] The Ontario Superior Court had to consider a practice similar to that of the City , when the municipality of Renfrew County began its Council meetings with the following prayer contained in a resolution : Almighty God, we give thanks for the great blessings which have been bestowed on Canada and its citizens, including the gifts of freedom, opportunity, and peace that we enjoy.

Guide us in our deliberations as [County Councillors], and strengthen us in our awareness of our duties and responsibilities. Grant us wisdom, knowledge, and understanding to preserve the blessings of this country for the benefit of all and to make good laws and wise decisions. Amen." [40] [ 90 ] I note that this prayer is significantly similar to that of the City of Saguenay. [ 91 ] T he expert who testified in the Renfrew case, Dr.

Gualtieri , while expressing the view that this prayer was religious in nature , opined : For present purposes all that is needed is to recognize that when Renfrew County Council specifies that its opening prayer is non- sectarian it means that it takes no sides on the truth – value of any particular religion, but is, rather, employing a formulation of such a high level of generality as to encompass all faiths.

Since the prayer is considered to privilege no particular faith position, it is, therefore, appropriate in a pluralistic society with a number of diverse religious traditions and its use does not discriminate against any. [41] [ 92 ] In light of this evidence, Hackland J.S.C. wrote: [19] With due respect to the applicant’s submission, I do not accept the proposition that the mere mention of God in a prayer in a governmental meeting, accompanied by the implication that God is the source of the values referred to in the prayer, can be seen as a coercive effort to compel religious observance.

The current prayer is broadly inclusive and is non denominational, even though the reference to God is not consistent with the beliefs of some minority groups. In a pluralistic society religious, moral or cultural values put forward in a public governmental context cannot always be expected to meet with universal acceptance. … [ 93 ] Despite its recognized religious aspect , h owever, the judge went on to ask whether this prayer imposed a religious practice upon those who adhere to a humanistic doctrine denying the existence of a divine power.

He answered this question as follows : [27] The prayer in its present form is not in substance a religious observance, coercive or otherwise and it does not impose any burden on the applicant or any restriction on his exercise of his own beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag , to participate in a Christian or other denominational form of worship.

The mere mention of God in the prayer in question is not in this Court’s opinion, sufficient in its effect on the applicant to interfere in any material way with his religious beliefs. [ 94 ] I note that both the prayer of the City and that of Renfrew are almost entirely based on the prayer recited by the President of the House of Commons at the opening of a parliamentary session , while the doors of the enclosure are still closed to the public : Almighty God, we give thanks for the great blessings which have been bestowed on Canada and its citizens, including the gifts of freedom, opportunity and peace that we enjoy.

We pray for our Sovereign, Queen Elizabeth, and the Governor General. Guide us in our deliberations as Members of Parliament, and strengthen us in our awareness of our duties and responsibilities as Members. Grant us wisdom, knowledge, and understanding to preserve the blessings of this country for the benefit of all and to make good laws and wise decisions.

Amen. [42] [ 95 ] Feldman J. of the Ontario Court of Appeal clearly suggested in an obiter comment in Freitag that a theistic prayer, similar to the one recited by the House of Commons, would respect the Canadian Charter as it is justifiable within the meaning of

section 1 : [52] Similarly in this case, the purposes articulated by the Mayor for opening the meetings of the Town Council with the Lord’s Prayer could be served, for example, by a non-denominational prayer and a moment of silence, similar to the current practice of the House of Commons. Therefore, the recitation of a denominational prayer does not minimally impair the appellant’s freedom. [43] [ 96 ] In

summary, the opinions of the experts Lefebvre and Bibeau are in accordance with that presented in Renfrew , have significant probative value, and are also firmly supported by case law. [ 97 ] The respondents respond that even if the City’s prayer appears non-denominational , you cannot force an atheist or an agnostic to abdicate his or her moral values ​​by forcing him or her to embrace a concept recognizing a form of divine supremacy.

This argument takes us to the heart of the legal concept of religious neutrality of the State . [ 98 ] Does this concept, broadly understood, mean that any reference to standards of moral conduct must be void of a society’s historical points of reference, including religious traditions? I do not think so. First of all, there are significant guidelines that allow us to dismiss the theory of all-out secularism. [ 99 ] Freedom of religion is a fundamental value protected by both the Quebec and Canadian Charters .

The Canadian Charter provides that it must be interpreted " in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians ". [44] This idea, in itself , excludes the possibility of validly supporting the existence of any absolute fundamental value .

[ 100 ] There is also the

preamble of the Canadian Charter , which states that "... Canada is founded upon principles that recognize the supremacy of God and the rule of law ". The purpose of mentioning th is statement is not to suggest that these words constitute an implicit limit on freedom of conscience, quite the contrary. Just like the

preamble to the Canadian Charter , however, the prayer at issue refers to a monotheistic deity. From this point of view, it is difficult to argue that the recitation of a prayer inspired by one of the fundamental principles of the Constitution could nevertheless violate Simoneau’s rights . I accept the appellant’s proposition to the affect that although some may be offended by this introduction in the Canadian Charter , it remains a principle that , from a constitutional point of view, is unassailable. [ 101 ] Similarly ,

section 29 of the Canadian Charter seems to exclude the idea of complete secularism : 29.

Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. [ 102 ] Next, in May of 2008, the Quebec government , surely aware of its duty of neutrality imposed by the Charter , clearly indicated its desire to preserve its cultural and religious heritage when the National Assembly unanimously passed the following motion : [ translation ] That the National Assembly reiterates its willingness to promote the language , history, culture and values ​​of the Quebec nation, encourage the integration of each person into our nation with an open mind and in the spirit of reciprocity and demonstrates its commitment to our religious and historical heritage represented by the crucifix in our blue room and our coat of arms adorning our institutions.

Mr. President, this motion is made jointly with the Leader of the Official Opposition and the Leader of the Second Opposition Group. [45] [ 103 ] Other examples can be added to these. One only has to think of the theistic references in the Canadian national anthem or the white cross adorning the Quebec flag , intended to symbolize the loyalty of the first francophone Quebecers to the religion of their ancestors (Catholicism ).

One could also mention the cross on Mount Royal on the island of Montreal and the various theistic elements found on coats of arms , including the motto "God and my right " under the shield of the Royal Arms, which date back to the time of Henry V , King of England, and which, today still, adorn some rooms presided by judges of the various courts . [ 104 ] These forms of religious particularism which we find scattered here and there in the public space are only historical manifestations of the religious dimension of Quebec society , which, when viewed with proper perspective , cannot have the effect of undermining the neutrality of the various branches of the State. [ 105 ] The notion of “ historical traditions” was adopted by the European Court of Human Rights for the purposes of the judgment to which I previously referred. [46] The same argument was successfully raised before the Supreme Court of the United States while reviewing the State of Nebraska’s practice of reciting a prayer at the opening of the sessions of its legislative assembly.

The majority of the Court was of the view that this practice already existed at the time of the First Amendment to the Constitution and that the founding fathers, aware of this situation, did not intend that prayer would violate this amendment . [47] [ 106 ] I am convinced by these examples that the principle of the religious neutrality of the State is intended to promote tolerance and openness in regard to diversity and not to exclude from the reality of a society any references to its history, albeit religious. [ 107 ] The respondents in this case could not simply allege mere references to religious heritage and conclude de facto that the City’s duty of neutrality was not respected.

A reasonable , well-informed person, a ware of the implicit values ​​that underlie this concept could not, in this case, accept the notion that the City’s political activities were, because of this prayer, under any particular religious influence. [48] [ 108 ] I conclude, on the basis of the foregoing, that the content of the prayer included in Bylaw VS-R-2008-40 cannot constitute an infringement to the neutrality of the City. [ 109 ] If I were to agree with Simoneau that its recitation constituted an infringement of his moral values , I would then have to determine whether this constraint wa s sufficient to constitute a discriminatory infringement of the freedoms of conscience and religion guaranteed by the Charter . [ 110 ] The context of the infringement, if such a demonstration had been made , indicates that the Mayor appears before the assembly and reads a prayer that lasts about twenty seconds before the Council officially begins its deliberations. [ 111 ] On the cognitive aspect of the Mayor’s words , the expert Lefebvre gave the following opinion : [ translation ] … In this sense, dissecting the prayer is hardly relevant , since individuals will in any event draw from it what they will .

In large-scale sociological surveys on religion , we see, for e xample, that the term God is given various meanings depending on the individual. In this sense, p rayers often play a metaphorical role, and it is rare that a person will interpret it in a purely orthodox way . In the present context, interpreting attachment to a prayer as evidence of the submission of those in authority to a higher being is abusive and does not take into account so-called religious modernity , i.e., the creation of meaning by the individuals themselves .

The other side of religious modernity , i.e., strong orthodoxy or compliance with religion, also refers to the same voluntary choice . [49] [Reference omitted.]

[ 112 ] The evidence does not show that Simoneau is a person who is particularly vulnerable to any message that is not in harmony with his moral values ​​or that the reported constraint creates disruptive effects in him that are distinct from those caused by the numerous theistic references he is confronted with daily in the public space ( Christmas trees, coats of arms , the cross on Mount Royal, and so on). [ 113 ] Moreover, the following passage from the judgment shows that Simoneau is not really bothered by the recitation of the prayer : [ translation ] [39] … he merely expects that Council meetings take place in a neutral environment.

He testified that [ translation ] “ it is not so much hearing the prayer that is the most bothersome.

I don’t really pay attention to it; I remain silent out of respect; ... it’s the idea that this has no place in the council chamber ”. … [50] [ 114 ] Furthermore, he acknowledged that he never felt any pressure to become an active participant in this demonstration. [ 115 ] I conclude that in light of the context in which the reported infringement occurs, it is one of those situations where we can say that the constraint , if any, is in any event trivial or insubstantial . [51] The religious symbols [ 116 ] The appellants are correct in asserting that the Tribunal could not, on its own initiative, raise the issue of the religious symbols .

As this part of the complaint was not subject to any investigation, and the appellants were deprived of possible negotiations with the respondents to find an acceptable compromise on this issue, [52] the Tribunal did not have jurisdiction to rule on this issue. [53] This conclusion is in itself sufficient to allow this aspect of the appeal.

That said, since the respondents have insisted upon this point , it is appropriate to respond to their concerns. [ 117 ] To date , it appears that the courts have been reluctant to comment on the consequences of the presence of religious symbols in public spaces , and more particularly in State spaces.

In 2007, the Consultation Commission on Accommodation Practices Related to Cultural Differences, known as the “ Bouchard-Taylor Commission” conducted a wide ranging consultation across Quebec on ​​various aspects favouring the integration of all citizens into Quebec society . [ 118 ] The Commission was called on to take position during its work on the place of religious heritage with in public institutions.

According to the Commission, modern secularism must “ seek to distinguish between what constitutes a form of establishment of religion and what is part of the society’s historic heritage ” . [54] It stated : However, certain practices or symbols may originate in the religion of the majority without necessarily genuinely restricting those who are not part of this majority. This is true of practices and symbols that have heritage value rather than playing a regulatory role.

For example, the cross on Mount Royal does not signify that Montréal identifies with Catholicism and does not demand of non-Catholics that they act against their conscience. It is a symbol that reflects a

chapter of our past. A religious symbol is thus compatible with secularism when it is a historic reminder rather than a sign of religious identification by a public institution. ... [55] [Citation omitted. Emphasis added.] [ 119 ] In the City Hall of the borough of La Baie, a crucifix is displayed on one of the walls of the council chamber. In that of the borough of Chicoutimi there is a statue of the Sacred Heart .

The respondents claim that these religious symbols placed in public spaces where the deliberations of elected municipal officials take place are incompatible with the exercise of Simoneau’s freedom of conscience and religion . They might be right in theory, but the context of this case suggests a more nuanced approach .

It is therefore intentionally that I will limit my remarks solely to the facts of this case. [ 120 ] It should be noted at the outset that these religious symbols were not placed as they were at the initiative of the appellants. [ 121 ] The crucifix comes from a well- known local artist , Victor Dallaire . His work was created in the early 1980s and occupies the place where another crucifix had been hanging since 1972 and perhaps even earlier than that. [ 122 ] Dallaire testified that his sculpture did n ot have a religious purpose.

Indeed, he explained that the work does not represent the dead Christ and does not show the character nailed to the cross. [ 123 ] As for the Sacred Heart statue , it was originally (in 1963) in the Constables’ Room located one floor down from that of the Council . Without further details , we do know, however, that this statue was placed in the current council chamber in 1977, where it has been since . [ 124 ] The expert Bibeau, when examined on the scope of these religious symbols and speaking of the cross , said that this work does not meet the canonical standards for a crucifix .

He noted that it is a form of art with a certain aesthetic value pertaining to a religious past .

As for the statue, beyond its heritage value , the expert believes that this symbol pertains more to the establishment of an ethical framework. [ 125 ] I am satisfied that the evidence heard by the Tribunal largely supports the idea that these two religious symbols (the cross and the Sacred Heart statue ) are, for a significant portion of the population, deprived of their religious connotation and that their presence is primarily of interest from the viewpoint of a historical cultural heritage and in no way interferes with the neutrality of the City. [ 126 ] The respondents have therefore failed to demonstrate, even in a prima facie manner, that by the mere presence of these symbols,

the City is actually or apparently under the yoke of the Catholic religion, or any other form of religious control, or that it practises a form activism of this nature. [ 127 ] To conclude on this issue, even if it had been demonstrated that the City was in breach of its duty of neutrality by allowing religious symbols to be kept in the space where public deliberations are held, the alleged infringement is at most insubstantial insofar as Simoneau alleges only mere discomfort at the sight of these objects, a discomfort that is in all probability based more on ideological divergence than on an actual violation.

Discrimination [ 128 ] I have concluded that the prayer recited by the Mayor and the two religious symbols at issue, when considered in context , do not demonstrate that the appellant’s City Council was under the influence of a religion or is trying to impose one . [ 129 ] I also ruled that even if there had been evidence of some form of coercion exercised against Simoneau’s moral convictions, it did not hinder, in a more than trivial or insubstantial manner, his ability to act in accordance with his principles of life. [ 130 ] For the purposes of this discussion, I add that it has not been shown that Simoneau was the subject of a distinction in violation of the principles of substantive equality .

In any event , the demonstration of harm is non-existent here . [ 131 ] The evidence does not show that Simoneau obtained less than other citizens because of a prejudice or stereotype.

His right to substantive equality was not violated because no situation was imposed on him that created an “ [ translation ] unfair and reprehensible disadvantage ” that prevented him from enjoying the same benefits as the other citizens who attended the public Council meetings at the same time. [ 132 ] While Simoneau does invoke several irritants that he elevates to the level of injury , his arguments do not withstand scrutiny . [ 133 ] He claims that he arrives early to Council meetings to reserve a spot with his coat.

With respect, I do not see how the decision to leave the room during the prayer deprives him of this habit , especially as the evidence shows that the seats reserved for citizens in the council chamber are usually occupied at only 20 % capacity . [ 134 ] He describes himself as a private person, and the fact that he does not share the same practices as the majority by remaining seated and refusing to recite the prayer has resulted , he claims , in his ostracization .

The evidence shows that not all councillors and citizens in attendance at Council meetings agree to participate in the prayer or openly show their support for this practice. Simoneau was therefore not alone in showing a form of indifference vis-a -vis this expression, such that his attitude could not have had the effect of ostracizing him, as he claims . [ 135 ] It is clear that , despite his reserved side , Simoneau has chosen to bring the issues of prayer and religious symbols into the public forum .

In deciding, for example, to commit apostasy , [56] by allowing his lawyer to put all the legal proceedings concerning this matter on his firm’s website, [57] and by publicly demanding, as he was entitled to do, the cessation of the contested practices , he chose to forego this reserve in favour of his ideals, and he cannot now complain of its effects. [ 136 ] To conclude on this issue , I do not think a “reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as [Simoneau]” [58] would agree that the disputed items have been proven to be detrimental to him or have had [ translation ] “ the effect of nullifying or impairing [his ] rights."

Section 9.1 of the Charter [ 137 ] In the foregoing reasons, I indistinctly addressed the considerations that, in my view, make the need to further discuss the possible justifications under

section 9.1 of the Charter superfluous. I will just add on this issue that the will of the Quebec government to protect its heritage seems obvious to me if we refer to the unanimous resolution of May 22, 2008. This is the history and ancient traditions that were at issue in Oakes [59] and which must be taken into account when assessing the very purpose of the freedoms of conscience and religion. The respondents' theory ignores this essential aspect of the analysis.

Alternative considerations Infringement of the right to dignity (section 4 of the Charter ) [ 138 ] Simoneau claims that the recitation of the prayer and the religious objects have infringed his right to dignity. It w as not, however, shown that he was treated as a “ less worthy ” person . [60] Also, his moral convictions have not been denied or ridiculed by the appellants. This ground is without merit. Display of symbols involving discrimination (section 11 of the Charter ) [ 139 ] The respondents did not show that the religious symbols they complain of in these proceedings contained the seeds of discrimination.

In fact, the opinions of the theologian Solange Lefebvre and the anthropologist Gilles Bibeau do not support this conclusion, quite the contrary. [ 140 ] The Tribunal , in determining whether the contentious items were discriminatory , was required to perform an objective analysis . In applying the standard of a symbol and a sign [ translation ] “ leading to a distinction ” , [61] he erred in law as the real test was to ask if the City had exhibited in public [ translation ] “ a symbol or a sign involving discrimination ” [62] [emphasis added ].

In this case, it has not been shown that these visual symbols remained active through worship or contemplation likely to infringe the neutrality of the City and that in and of themselves , by their very nature, these symbols involved discrimination.

Right to information (section 44 of the Charter ) [ 141 ] Simoneau asserts, without demonstrating it, that his right to information was not respected. Alleging that he is forced to wait outside the council chamber during the prayer, he claims to be deprived of the information he seeks by coming to this public meeting. [ 142 ] He is, however, unable to indicate under what circumstances and when he was actually deprived of elements of relevant information.

Validity of Bylaw VS-R-2008-40 [ 143 ] The respondents claim that Bylaw VS-R-2008-40 is beyond the scope of a municipality’s jurisdiction. [ 144 ] They nevertheless asked the Tribunal to resolve their claims in terms of discrimination. Among the conclusions sought in their motion to institute proceedings, none sought to have Bylaw VS-R-2008-40 declared invalid. In any event, the Tribunal would have had to dismiss such a conclusion for lack of jurisdiction ratione materiae .

This was affirmed by this Court in the following passage: [63] [ translation] [67] If the issue is raised before the Superior Court, the action may be for a declaration of invalidity . An administrative tribunal with quasi judicial powers, such as the Human Rights Tribunal, does not have jurisdiction to declare a law invalid.

It may, however, rule that a legislative provision infringes the Charter and may not, therefore, be set up against a complainant. [ 145 ] As the respondents chose not to raise this issue before the appropriate forum, in this case, the Superior Court , they cannot on appeal , add this argument to their arsenal of complaints . [64] Jurisdiction of the Tribunal [ 146 ] The Tribunal's conclusion that [ translation ] “ orders the City of Saguenay to remove all religious symbols from each room in which the City Council holds public meetings ... ” [65] [emphasis added] appears excessive in relation to its limited jurisdiction.

To the extent that the respondents presented no evidence with respect to [ translation ] " any [other ] religious symbol ," not to mention the absence of evidence of prejudice on this specific point , this conclusion sho uld not have been retained in the disposition of the judgment under appeal . Mayor’s attitude [ 147 ] It is noteworthy that until now I have not addressed the attitude of the Mayor of the appellant City towards prayer and his inopportune public statements about his faith. [ 148 ] First, we must recall that the Commission's investigation focused essentially on the issue of prayer.

The respondents attempted to use the Mayor’s attitude to define its actual scope. I have, however, excluded this approach from my analysis because I found it too subjective, emotional even, and prefer to stick to the opinion of the experts Lefebvre and Bibeau. [ 149 ] Next, I note that the respondents decided against asking the Superior Court for orders to stop the Mayor’s committed attitudes.

I believe, however, that a court before which this issue was properly brought could not remain indifferent to some of his public demonstrations, which, in my opinion, violated the duty to act with the reserve that is associated with public office, and at the same time, risked infringing the rule of neutrality applicable to municipal bodies. [ 150 ] I am referring here to the sign of the cross that the Mayor makes and the words accompanying this gesture . Clearly, this is a committed attitude that challenges , at least in appearance , the religious neutrality of the City and that of its representatives.

This conduct cons titutes an undeniable public adherence to C atholicism. [ 151 ] Moreover, the Mayor , far from shying away from it, reiterated before the Tribunal a statement that he had made to the media in the following terms: [ translation] “This fight [ referring to the trial being heard by the Tribunal ], I do it because I love Christ . ... When I get to the other side , I can be a little arrogant . I can say, ‘ I fought for you ’ . There is no finer argument.

It’s extraordinary”. [66] [ 152 ] These are words and behaviour that reflect a basic lack of reserve from one who holds an elected position and participates in the governance of the City on a daily basis. It seems quite inappropriate that a prestigious office could be used to promote one’s own personal religious beliefs.

Moreover, nobody has argued before this Court that the voters of the City of Saguenay chose their representatives for their avowed belief in any divinity. [ 153 ] One thing is certain, we cannot blame a citizen who believes in the fundamental values ​​enshrined in the Charter for feeling violated by the attitudes and statements of an elected official, whom we expect will carry out his mandate without displaying his religious beliefs. In terms of image , we cannot conceive of this otherwise than as a failure.

Incidental appeal [ 154 ] The incidental appellants have asked us to order the incidental respondents to pay their legal fees and costs on a solicitor-client basis . Given my conclusion on the principal appeal , the issue raised by the incidental appeal has become moot. [ 155 ] In any event, it has not been demonstrated that the appellants' conduct in the way they defended themselves at first instance or on appeal was vindictive , outrageous or simply reprehensible . [67]

Conclusion [ 156 ] Although one could express some reservations about the advisability of Bylaw VS-R-2008-40 and the presence of religious symbols in the areas where City Council meets on the grounds that these expressions do not contribute to municipal democracy and add little to the quality of discussions, I agree with the appellants that the neutrality of the City has not, however, been compromised by these references to its cultural and historical heritage.

Overall, objectively, there is no real conflict between Simoneau’s moral convictions and the events reported. [ 157 ] That said, I have no reason to believe that Simoneau has acted abusively in attempting to put forward his moral convictions. He argued with a Mayor who saw in the claims of one of his citizens the opportunity to wage [ translation ] “a battle” on his own behalf and on behalf of the City.

With this bad reflex, the Mayor has unnecessarily polarized the respective positions of the parties. [ 158 ] The appellants believed in their position, and my understanding of the law that applies to the parties’ situation indicates that they are right. The intransigence of the Mayor , however, led a citizen and a non-profit organization to defend their principles all the way to this Court.

In my opinion , the conclusions of our judgment must take this fact into account . [ 159 ] I would therefore allow the principal appeal and dismiss the motion to institute proceedings without costs, both before the Tribunal and on appeal . I would also dismiss the incidental appeal witho

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