DATE: 19990923
DOCKET: C29042
COURT OF APPEAL FOR ONTARIO
CATZMAN, LASKIN and FELDMAN JJ.A.
BETWEEN: )
)
HENRY W. FREITAG ) John J. Winter, for the
) Applicant/Appellant
Applicant/Appellant )
)
– and – )
)
THE CORPORATION OF THE TOWN ) Frank N. Grisé, for the
OF PENETANGUISHENE ) Respondent
)
Respondent )
)
) Heard: November 17, 1998
On appeal from the judgment of Hermiston J. dated January 6,
1998 at Barrie, Ontario.
FELDMAN J.A.:
[1] The appellant is a non-Christian resident of the
Town of Penetanguishene who is interested and active in
local affairs, and regularly attends Town Council meetings.
The issue on this appeal is whether the practice of the Town
Council and its Mayor of commencing those meetings by asking
the councillors to rise and recite the Lord’s Prayer
infringes the appellant’s Charter right to freedom of
conscience and religion.
FACTS
[2] This matter was brought before the court as an
application on the basis of affidavit evidence. No cross-
examinations were undertaken. The appellant sought to
introduce some further evidence on the appeal regarding
events which occurred after the judgment was released. The
respondent objected, and in the alternative sought to file
some evidence in response. In my view, the new evidence is
not necessary for the disposition of the appeal and will not
be referred to.
[3] The respondent Town is organized under and
governed by the Municipal Act, R.S.O. 1990, c.M.45.
Subsection 55(2) of the Act provides that “Every council
…shall adopt a procedure by-law for governing the calling,
place and proceedings of meetings.” Pursuant to that
subsection, the Town Council passed by-law 1996-69, section
9.2 of which provides that “the Mayor or Member acting as
Head of Council shall open the meeting of the Council by
taking the Chair and calling the Members to order.” The by-
law provides that the Mayor is the head of council. Section
57 of the Municipal Act provides that the head of council
presides at all council meetings.
[4] It is the practice of the Mayor to open the
meetings of council and of committees by inviting the
councillors to rise with him and recite the Lord’s Prayer.
In his affidavit, the Mayor deposes that this has been the
practice in the Town for 100 years.
[5] The appellant is a very active resident of the
Town who attends council meetings and often raises issues at
the meetings and in writing to the municipality. He says
that when the council rises and recites the Lord’s Prayer,
the members of the public also rise and recite the prayer.
He acknowledges that he is not forced to stand and say the
Lord’s Prayer at the opening of the meetings. However, he
says that there is great pressure to do so, and that as a
non-Christian, he feels intimidated and uncomfortable with
the practice adopted by the Town. He also says that although
he has considered running for office, he has been deterred
from doing so, as it would be contrary to his personal
beliefs to be a member of a council that uses a
denominational prayer as it does.
[6] The appellant deposed that when he approached the
Mayor about his concern, the Mayor told him that it was his
right to bring religion into the council chamber. In his
affidavit, the Mayor states that the purpose of the practice
is to “have the Council take a moment’s pause to recognize
the importance of our deliberations, the moral values that
should be brought onto our deliberations and the fact that
we are serving the public when we deliberate.” He says that
the purpose is not to force anyone to follow a particular
faith or to indoctrinate them into the Christian faith.
[7] The appellant asked the Town Council to refrain
from this practice but his request was denied. He then
complained to the Ontario Human Rights Commission about the
issue. The Commission ultimately declined to order a Board
of Inquiry on what appear to be jurisdictional grounds.
Before finally bringing this application, the appellant
again asked the Town Council to discontinue the prayer
practice, but his request was again refused.
[8] Another resident of the Town who does not practise
the Christian faith, Mr. Randy Robbins, has been a member of
council since 1991. He does not feel compelled to stand when
called upon by the Mayor, but he chooses to stand and take a
moment for silent reflection. He has observed the appellant
at meetings and reports that the appellant neither stands
nor recites the prayer. He also deposed that in his
opinion, the appellant does not show outward signs of
discomfort or embarrassment. The Mayor also observes the
appellant at meetings and deposed that the appellant
generally sits during the opening prayer.
[9] The application judge dismissed the application on
two grounds. He first found that there is no legislation or
regulation in issue which affects the appellant’s Charter
rights. In his view, the recitation of the Lord’s Prayer is
done at the personal invitation of the Mayor, so that there
is no legislative component to the activity. He concluded
that if there was any violation, it did not emanate from the
state. Second, he held that if the practice was carried out
pursuant to the by-law enacted under the Municipal Act, its
effect is trivial and insubstantial and therefore does not
violate the Charter protection of freedom of religion.
DISCUSSION
1. Is the act of the Mayor in inviting the members of the
Town Council to rise with him and recite the Lord’s Prayer,
governmental conduct which is subject to the Charter?
[10] Section 32 of the Canadian Charter of Rights and
Freedoms provides that:
32(1) This Charter applies
(a) to the Parliament and government of Canada…; and
(b) to the legislature and government of each province
in respect of all matters within the authority of the
legislature of each province.
[11] It is clear that municipal government is a matter
within the authority of the province, and that the Municipal
Act and the by-laws promulgated by a municipality pursuant
to that Act must comply with the Charter. (See: Godbout v.
Longueuil (City), [1997] 3 S.C.R. 844 at pp.880-81.)
[12] The by-law of the respondent Town does not mandate
recitation of the Lord’s Prayer, nor does it refer to the
recitation of any prayer or particular opening ceremony for
council and committee meetings. However, the Mayor’s
authority to conduct the meetings derives directly from the
Municipal Act, while his authority to open the meetings
derives from the by-law. The fact that he chooses to do so
by invoking the Lord’s Prayer means that the recitation of
the prayer is part of the meetings and is done pursuant to
the authority of the Mayor to open and conduct the meetings.
It does not make it an invitation of the Mayor in his
personal capacity and therefore outside his legislative
capacity and authority to open and conduct the meetings. In
other words, when the Mayor opens the Town Council meetings
by inviting the councillors to rise and recite the Lord’s
Prayer with him, that action is governmental conduct by a
government official in a government meeting.
[13] In Canadian Civil Liberties Association v. Ontario
(Minister of Education) (1990), 71 O.R. (2d) 341 (C.A.) a
five-member court considered the issue of whether a school
curriculum created in order to implement a regulation which
provided that there must be certain periods of religious
instruction in public schools, was a law which could be
declared unconstitutional under the Charter. The court
stated at p. 367:
In our respectful view, the appropriate way to view the
matter is to regard the curriculum not as law but as
governmental conduct authorized by s. 28(4) of the
Regulation. If this conduct infringes rights guaranteed by
s. 2(a) of the Charter then this court should so declare.
The remedy would be under s. 24(1) of the Charter and not s.
52(1) of the Constitution Act, 1982.
[14] In my view, the practice of the Town Council to have
the councillors stand and recite the Lord’s Prayer at the
opening of its public meetings, and the action of the Mayor
in implementing that practice, are also not law but
governmental conduct which is subject to the Charter, and
therefore potentially subject to a declaration of
unconstitutionality.
2. Does the governmental conduct by the Town infringe the
Charter freedom of conscience and religion and therefore
violate s. 2(a) of the Charter?
(a) Does the purpose of the Town’s practice violate s. 2(a)
of the Charter?
(b) Does the effect of the Town’s practice infringe the
rights of the appellant under s. 2(a) of the Charter?
[15] The proper judicial approach to the question is first,
to determine whether the governmental conduct prima facie
interferes with a Charter right or freedom, and if so, then
second, to consider whether that interference is justified
under s. 1 of the Charter. See Zylberberg v. Sudbury Board
of Education (Director) (1988), 65 O.R. (2d) 641 at 651
(C.A.) (rev’g (1986), 55 O.R. (2d) 749 (Div. Ct.)).
[16] Section 2(a) of the Charter provides:
Everyone has the following fundamental freedoms:
(a) Freedom of conscience and religion;
… .
[17] The meaning of freedom of religion has been examined in
several cases both in the Supreme Court of Canada and in
this court. The seminal case is the decision of the Supreme
Court in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295,
where the court held that the federal Lord’s Day Act
contravened s. 2(a) of the Charter because it mandated
observance of the Christian Sabbath. The court set out the
proper approach when considering whether legislation
infringes a guaranteed Charter right: one must look first at
the purpose of that legislation; if its purpose is
constitutionally benign, one looks also to its effects. The
court held that the purpose of the Lord’s Day Act was
clearly to impose Christian sabbatical observance. There was
therefore no need to examine its effects.
[18] In this case it is also clear that the purpose of the
recitation of the Lord’s Prayer at the opening of council
meetings is to impose a Christian moral tone on the
deliberations of council. Although Mr. Robbins has deposed
that he does not in fact say the prayer with the others, but
rather takes a moment of silence instead, the Town has been
given numerous opportunities to elect to open meetings in a
way which would achieve the purpose the Mayor seeks, of
setting a moral tone which reflects the role of the council
to serve the public, but without the recitation of a
Christian prayer. However, the Town has declined to take
that course or to alter its practice.
[19] In Big M, Dickson J. described in a very oft-quoted
passage, the nature and meaning of freedom of religion under
the Charter and the various components which form part of
that Charter right at pp. 336-37:
The essence of the concept of freedom of religion is
the right to entertain such religious beliefs as a person
chooses, the right to declare religious beliefs openly and
without fear of hindrance or reprisal, and the right to
manifest religious belief by worship and practice or by
teaching and dissemination. But the concept means more than
that.
Freedom can primarily be
characterized by the absence of coercion
or constraint. If a person is compelled
by the state or the will of another to a
course of action or inaction which he
would not otherwise have chosen, he is
not acting of his own volition and he
cannot be said to be truly free. One of
the major purposes of the Charter is to
protect, within reason, from compulsion
or restraint. Coercion includes not only
such blatant forms of compulsion as
direct commands to act or refrain from
acting on pain of sanction, coercion
includes indirect forms of control which
determine or limit alternative courses
of conduct available to others. Freedom
in a broad sense embraces both the
absence of coercion and constraint, and
the right to manifest beliefs and
practices. Freedom means that, subject
to such limitations as are necessary to
protect public safety, order, health, or
morals, or the fundamental rights and
freedoms of others, no one is to be
forced to act in a way contrary to his
beliefs or his conscience.
What may appear good and true to a
majoritarian religious group, or to the
state acting at their behest, may not,
for religious reasons, be imposed upon
citizens who take a contrary view. The
Charter safeguards religious minorities
from the threat of “the tyranny of the
majority”.
[20] These concepts and principles, embodied within s. 2(a)
of the Charter, including the right to practise one’s
religion openly and without fear, the absence of any direct
or indirect coercion to act in a way contrary to one’s
beliefs, and the freedom not to conform to the religious
practices of the majority, were applied by this court in the
case of Zylberberg, supra, which also involved the
recitation of the Lord’s Prayer, but in the public school.
[21] The issue in that case was whether a regulation under
the Education Act, R.S.O. 1980, c. 129 allowed the Sudbury
Board of Education to prescribe, as it had, Christian
religious opening exercises in public schools, in
particular, Bible readings and the recitation of the Lord’s
Prayer. The court noted that the Lord’s Prayer is a
Christian prayer, and that its recitation as well as the
reading of scriptures from the Christian Bible “impose
Christian observances upon non-Christian pupils and
religious observances on non-believers.” (p.654). The Board
conceded on the appeal that the regulation on its face
infringed s. 2(a) of the Charter.
[22] However, the Board allowed any student who did not wish
to participate in these religious exercises to claim an
exemption. Those students could either leave the room or
remain, but not participate. The Board therefore took the
position that the regulation did not in fact infringe the
Charter guarantee of freedom of religion because there was
no pressure or compulsion on any student to participate in
the infringing exercises. The Attorney General submitted
that although requesting an exemption might be embarrassing,
it was not coercive in effect.
[23] The court firmly rejected that submission. It stated at
p. 654:
From the majoritarian standpoint, the respondent’s
argument is understandable but, in our opinion, it does not
reflect the reality of the situation faced by members of
religious minorities. Whether or not there is pressure or
compulsion must be assessed from their standpoint and, in
particular, from the standpoint of pupils in the sensitive
setting of a public school.
[24] In this case, the Town makes a similar argument. The
appellant conceded that he did not feel forced to stand and
recite the Lord’s Prayer when others did. Others have
observed that he does not stand, nor does he recite the
prayer. They also note that he participates in meetings and
that outwardly he does not appear to be uncomfortable.
However he has deposed without challenge by cross-
examination, that he feels great pressure to stand, and as a
non-Christian, he feels intimidated by and uncomfortable
with the practice of having the councillors stand and recite
the prayer. The application judge did not question the
appellant’s position on this point. He believed that the
issue was not serious enough to warrant the application of
the Charter and went on to hold that the effect of the
Town’s practice was trivial and insubstantial and therefore
not a violation of the Charter. He concluded with the
following observation: “ In this world, fraught with heinous
criminal activity everywhere, where continents may explode
at any time from political strife, where millions suffer
from hunger, pestilence and natural disaster, surely a Town
Council in our community which takes the time for a minute
of reflection, which takes the time to recite an innocuous
prayer, should not be censured.”
[25] In my view, the application judge erred in his approach
to this issue. He never considered the purpose of the
practice but looked only at its effect. Because the purpose
of the practice, to impose a specifically Christian moral
tone on the deliberations of the Town Council, contravenes
s. 2(a) of the Charter, there is no need to examine the
effects of the practice. However, even if one does consider
the effects, the application judge erred in finding that
they are trivial and insubstantial.
[26] The application judge referred to the case of Hy and
Zel’s v. Ontario (Attorney General), [1993] 3 S.C.R. 675, in
which the Supreme Court of Canada noted that where an
applicant requires a grant of standing in order to bring a
Charter application because the infringement claimed is of
the right of another, then one of the criteria for granting
standing is that a serious issue must be raised as to the
validity of the particular statute. In this case, however,
Mr. Freitag’s standing is based on the infringement of his
own Charter right. Furthermore, there can be no question
that he views the issue as being very serious, having tried
over eight years several legal as well as informal avenues
to have the matter addressed.
[27] The application judge also referred to Jones v. The
Queen, [1986] 2 S.C.R. 284, where Wilson J., speaking for
the majority on this issue, commented at p. 314 as follows:
“Legislative or administrative action whose effect on
religion is trivial or insubstantial is not, in my view, a
breach of freedom of religion.” That case involved the
Alberta School Act R.S.A. 1980, c. S-3, which provided that
a child could be educated in a public or private or home
school, as long as any non-public school was certified or
approved by the Department of Education. The appellant
pastor operated a school for his children and others without
seeking certification or approval, on the basis that his
authority to educate his children came from God and it would
be sinful for him to seek authority from the state. On the
s. 2(a) issue, the majority held that there was neither an
infringing purpose nor effect to the impugned legislation.
Rather than infringe religious freedom, the Act accommodated
it by allowing religious schools. Wilson J. added that if
the Act did affect the appellant’s beliefs or practices,
which she doubted, then it did so only in a trivial manner
and therefore not in a way which would constitute an
infringement of the Charter guarantee. This comment
demonstrates, in my view, the nature of the type of
infringement which may be characterized by a court as
trivial, that is, one which the court perceives as having
virtually no effect.
[28] R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713
is another of the Supreme Court cases where the concept of a
“trivial or insubstantial” effect is referred to. There the
Ontario Retail Business Holidays Act R.S.O. 1980, c. 453 was
held to be legislation within provincial competence, which
had the secular purpose of providing uniform holidays for
retail workers. However, the court had to deal with the
argument that one way in which the Act imposed a coercive
burden on the religious practice of those who observe a
Saturday Sabbath, was by making it more expensive for those
people to practise their religious tenets, thereby putting
on indirect pressure to forego those tenets and open on
Saturday.
[29] In response to that argument, Dickson C.J. first
addressed the issue of whether an indirect burden on
religious practice may be prohibited by s. 2(a) of the
Charter, and concluded that it may: “It matters not, I
believe, whether a coercive burden is direct or indirect,
intentional or unintentional, foreseeable or unforeseeable.
All coercive burdens on the exercise of religious beliefs
are potentially within the ambit of s. 2(a).” (p.759) He
then went on to consider whether every burden on religious
practice offends the Charter and concluded that it does not:
This does not mean, however, that every burden on
religious practices is offensive to the constitutional
guarantee of freedom of religion. It means only that
indirect or unintentional burdens will not be held to be
outside the scope of Charter protection on that account
alone. Section 2(a) does not require the legislatures to
eliminate every minuscule state-imposed cost associated with
the practice of religion. Otherwise, the Charter would
offer protection from innocuous secular legislation such as
a taxation act that imposed a modest sales tax extending to
all products, including those used in the course of
religious worship. In my opinion, it is unnecessary to turn
to s. 1 in order to justify legislation of that sort. The
purpose of s. 2(a) is to ensure that society does not
interfere with profoundly personal beliefs that govern one’s
perception of oneself, humankind, nature, and, in some
cases, a higher or different order of being. These beliefs,
in turn, govern one’s conduct and practices. The
Constitution shelters individuals and groups only to the
extent that religious beliefs or conduct might reasonably or
actually be threatened. For a state-imposed cost or burden
to be proscribed by s. 2(a) it must be capable of
interfering with religious belief or practice. In short,
legislative or administrative action which increases the
cost of practising or otherwise manifesting religious
beliefs is not prohibited if the burden is trivial or
insubstantial: see, on this point, R. v. Jones, [1986] 2
S.C.R. 284, per Wilson J. at p. 314. (p.759)
[30] The exemption for trivial or insubstantial burdens
referred to in Edwards Books, again relates only to burdens
which are a consequential effect of legislation whose
purpose does not offend the Charter. Furthermore, the
court’s examples refer to a very small monetary cost to
practise one’s religion, which cost is not directed to the
practice of religion but applies broadly and therefore is
consequential only, and is, as the court stated,
“miniscule”. There is no issue of monetary cost in this
case.
[31] The concept that an infringement could be so
insubstantial that it was not worthy of Charter protection
was also raised in the Zylberberg case in circumstances
similar to this case. As I have already noted, on the appeal
the Board of Education acknowledged that there was a prima
facie infringement of the Charter right by the regulation
which authorized opening the school day with the Lord’s
Prayer, but its argument was that because children could
seek an exemption, there was no compulsion and therefore no
Charter breach. The Divisional Court had held that the
regulation did not infringe the freedom of religion
guarantee, but if there was a Charter breach, it was
justified under s. 1 because the inculcation of morality was
a proper educational object, religion was intertwined with
morality, and therefore if this resulted in infringement, it
was not substantial.
[32] That view was firmly rejected by the Court of Appeal at
p. 657: “In our opinion, judged on a purely factual basis,
the denigration of the minorities’ freedom of conscience and
religion by the operation of s. 28(1) constitutes an
infringement of s. 2(a) of the Charter which is not
“insubstantial or trivial”: see Jones v. The Queen, [1986] 2
S.C.R. 284 at p. 314 per Wilson J., and R. v. Edwards Books
& Art Ltd., [1986] 2 S.C.R. 713 at 759, per Dickson C.J.C.”
[33] The main factor which distinguishes this case from
Zylberberg is that the person who is seeking the relief in
this case and who claims that he is being affected by the
Charter breach is an adult citizen attending Town Council
meetings, rather than children attending school, although in
that case the rights of the parents of the affected children
were also considered. Clearly the nature and potential
effect of the coercion are much different for an adult who
wishes to attend Town Council meetings than for children who
are in the school environment all year with friends and
teachers, and are subject to the pressures that those
important relationships engender.
[34] However, in my view, the fact that the applicants in
Zylberberg may be perceived as more vulnerable than the
appellant in this case is not determinative of the issue.
Just as children are entitled to attend public school and be
free from coercion or pressure to conform to the religious
practices of the majority, so everyone is entitled to attend
public local council meetings and to enjoy the same freedom.
[35] In Zylberberg expert evidence was led which suggested
that children were more susceptible to and affected by peer
pressure to conform. There was also contrary expert evidence
which said that children from minority religions were not
harmed by the Board’s policy and that the policy in fact
helped those students confront their differences. The Court
of Appeal accepted the former evidence but rejected the
latter as deprecating the position of religious minorities
and failing to take into account the feelings of children.
[36] In this case there is no expert evidence on the effect
of peer pressure on adults. There is, however, direct
evidence, first from the appellant that he feels
intimidation when he attends the meeting of his local Town
Council. This does not mean he is so fearful that he does
not participate. He does so, but as a citizen who is singled
out as being not part of the majority recognized officially
in the proceedings. Because of the exclusionary practice of
the council, he has also been dissuaded from running for
council in an election. Second, there is the evidence from
the Town’s witnesses that in fact the appellant is observed
by others in attendance at the meetings and his actions are
analyzed and made the subject of comment. Of course this is
partly attributable to the fact that he has made an issue of
the Town’s practice. However, that fact further illustrates
the significance of the situation. Someone who chooses to
object to government action which is inclusive of the
majority but forces the religious minority to conform or to
accept exclusion, is then subjected to further scrutiny of
his actions, together with the further pressure and
intimidation which that may occasion.
[37] The analysis of Reid J. in his dissenting reasons in
the Divisional Court decision in Zylberberg, approved by the
Court of Appeal, at pp. 654-55, bears repeating:
It may be that a control or limitation indirectly
imposed is not readily appreciable to those who are not
affected by it. It may be difficult for members of a
majoritarian religious group, as I am, to appreciate the
feelings of members of what, in our society, are minority
religions. It may be difficult for religious people to
appreciate the feelings of agnostics and atheists. Yet
nevertheless those feelings exist. No one has suggested that
the feelings expressed by applicants are not real, or that
they do not run deep.
[38] The Charter guarantee of freedom of conscience and
religion is not limited to children or to those who might be
more vulnerable to social stigma or pressure because of
their age or their stage of life. It is a right guaranteed
to everyone in this country. In Big M, Dickson J. explained
the effect of the Lord’s Day Act on religious minorities at
p. 337 as follows:
To the extent that it binds all to a sectarian Christian
ideal, the Lord’s Day Act works a form of coercion inimical
to the spirit of the Charter and the dignity of all non-
Christians. In proclaiming the standards of the Christian
faith, the Act creates a climate hostile to, and gives the
appearance of discrimination against, non-Christian
Canadians. It takes religious values rooted in Christian
morality and, using the force of the state, translates them
into a positive law binding on believers and non-believers
alike. The theological content of the legislation remains as
a subtle and constant reminder to religious minorities
within the country of their differences with, and alienation
from, the dominant religious culture.
[39] The “subtle and constant reminder” of his difference
from the majority is what causes the appellant to feel
intimidated and uncomfortable at council meetings. It has
also deterred him from running for a council which proclaims
and identifies itself as it does. In Zylberberg, this court
also found an infringement of s. 2(a) in “a broader sense.”
It held, at p.655, that the need to seek an exemption from
attending the opening exercises “compels students and
parents to make a religious statement” (emphasis added) so
that the effect of the exemption provisions was to
discriminate against religious minorities by stigmatizing
them. The court concluded that the exemption provision,
which was invoked to seek to avoid the compulsion of the
infringing legislation, failed to mitigate the infringement.
[40] Similarly, the appellant is clearly stigmatized by his
decision not to stand and recite the Lord’s Prayer, so that
the fact that he is not prohibited from making that choice
does not save the Town’s practice from infringing his
Charter right.
[41] In my view, in the face of both the evidence in this
case, as well as the well-established principles which have
guided our courts in their interpretation and application of
the freedom of religion guarantee, this is not a case where
the effect of the Charter infringement is either trivial or
insubstantial. In his analysis, the application judge sought
to minimize the appellant’s position by comparing the
relative significance or seriousness of the appellant’s
complaint to catastrophic world problems for humanity such
as hunger and natural disasters. With respect, such
comparisons serve little purpose. The Canadian Charter of
Rights and Freedoms is part of the Constitution of this
country, the interpretation and application of which are of
paramount juridical importance both for the present and the
future. Fundamental to the preservation of our freedoms is
our democratic process and the ability to participate in it
freely. In Big M Dickson J. stated at p. 346: “an emphasis
on individual conscience and individual judgment also lies
at the heart of our democratic political tradition. The
ability of each citizen to make free and informed decisions
is the absolute prerequisite for the legitimacy,
acceptability, and efficacy of our system of self-
government.”
[42] Another argument advanced by the Town is that there is
an historical practice and tradition both in several
municipalities as well as in the legislature of the Province
to commence the proceedings with the Lord’s Prayer. This
argument was also addressed by the court in the Zylberberg
decision. Again quoting from Dickson J. in Big M at p. 344
the court referred, at p. 653, to the following passage
regarding how a court should interpret the Charter:
The interpretation should be, as the judgment in
Southam emphasizes, a generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter’s
protection.
[43] This court then concluded, importantly, that: “This
approach compels the re-evaluation of opening religious
exercises in public schools. It can no longer be assumed
that Christian practices are acceptable to the whole
community.”
[44] Interestingly, the historical tradition argument was
determinative in the United States when a constitutional
challenge was brought in the Supreme Court to the
recitation of prayers at the opening of each session of the
state legislature of Nebraska: Marsh v. Chambers, 463 U.S.
783 (1983). The majority accepted the argument that because
the founding fathers allowed such prayers at the time of the
First Amendment to the Constitution guaranteeing no state
establishment of religion or prohibition of the free
exercise of religion, the fathers could not have intended
such prayers to be a violation of the amendment. In a strong
dissent, Brennan J. pointed out that using traditional
constitutional analysis of the “establishment clause” of the
First Amendment, the legislative prayer practice would be
struck down, and that it could not be saved by historical
tradition. He referred to a previous decision of the court
in Abington School Dist. v. Schempp, 374 U.S. 203 (1963) at
pp. 240-41, where the court said: “[O]ur religious
composition makes us a vastly more diverse people than were
our forefathers….In the face of such profound changes,
practices which may have been objectionable to no one in the
time of Jefferson and Madison may today be highly offensive
to many persons, the deeply devout and the nonbelievers
alike.”
[45] That statement is equally true of our country, and
reflects the sentiments of the Supreme Court in the Big M
case, this court in Zylberberg, as well as the Parliament of
Canada. Since 1877, Parliament has commenced its
proceedings with a prayer read by the Speaker before the
doors of the House were opened to the public. See Canada,
Parliament, House of Commons, Table Research Branch, Précis
of Procedure, 5th ed. (Ottawa: Canada Communication Group,
1996) at p. 19. In 1994, the sectarian prayer which had
historically been used was replaced with the following non-
sectarian prayer, which is read in English and French before
the doors are opened 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.
We will now have a moment of
silence for private reflection and
meditation. Amen.
[46] Furthermore, the historical argument is inconsistent
with s. 27 of the Charter, which ensures the preservation
and enhancement of the multicultural nature of current
Canadian society as well as of our Canadian heritage.
Section 27 provides:
This Charter shall be interpreted in a manner consistent
with the preservation and enhancement of the multicultural
heritage of Canadians.
3. Is the Town’s practice saved by s. 1 of the Charter?
[47] Section 1 of the Canadian Charter of Rights and
Freedoms provides:
The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
[48] In its argument the Town did not attempt to
demonstrate that its practice could be saved as reasonable
and demonstrably justified in a free and democratic society.
Only the possible application of s. 1 of the Charter is
raised in its factum. In addition to the fact that the
respondent has not attempted to save its practice by the
application of s. 1, the governmental action of the Town
Council in this case cannot be saved under s. 1 of the
Charter for three reasons.
[49] The Supreme Court of Canada has held that a “limit will
be prescribed by law within the meaning of s. 1 if it is
expressly provided for by statute or regulation, or results
by necessary implication from the terms of a statute or
regulation or from its operating requirements. The limit may
also result from the application of a common law rule.” R.
v. Thomsen, [1988] 1 S.C.R. 640 at pp. 650-651 quoting from
R. v. Therens, [1985] 1 S.C.R. 613 at p. 645 per LeDain J.,
R. v. Hebert , [1990] 2 S.C.R. 151 at p. 187. Because the
Town’s by-law does not mandate nor does it necessarily
require the recitation of the Lord’s Prayer at the opening
of Town Council meetings, nor is there any common law rule
involved, and because the Town’s practice is governmental
action and not legislation, there is no limit “prescribed by
law” for the court to assess. Therefore s. 1 of the Charter
can have no application in this case.
[50] This court has held both in Zylberberg as well as in
Canadian Civil Liberties Association v. Ontario (Minister of
Education), that when the purpose of the impugned
legislation or governmental action is to compel religious
observance, then it cannot be justified under s. 1. As the
purpose of the practice of the Town Council in opening its
meetings with the recitation of the Lord’s Prayer is to
impose a Christian moral tone and therefore the purpose
itself infringes the appellant's Charter right, the practice
cannot be justified under s. 1.
[51] In Zylberberg, the court went on to consider an
abbreviated analysis in accordance with R. v. Oakes, [1986]
1 S.C.R. 103. For the purpose of the analysis the court
addressed what it considered to be the most vulnerable
element of the Oakes test for the respondent, that is,
whether the infringing section minimally impaired the
appellants’ freedoms, and concluded that it did not.
[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.
CONCLUSION
[53] The practice of the Town of Penetanguishene and of the
Mayor of opening the Town Council and committee meetings by
asking the councillors to rise and recite with him the
Lord’s Prayer infringes the appellant’s Charter right to
freedom of religion under s. 2(a) and cannot be saved under
s. 1. The appellant is entitled to a remedy under s. 24(1)
of the Charter.
[54] The appeal is therefore allowed. The judgment below is
set aside and judgment is granted declaring that the
practice of the Town is unconstitutional and enjoining the
Town Council from continuing to require or permit the Lord’s
Prayer to be recited by members of Council at the
commencement of its meetings. The appellant shall have his
costs both here and below.
Released: September 23, 1999 “K. Feldman J.A.”
Mac “I agree M.A. Catzman J.A.”
“I agree Laskin J.A.”
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