By Mervyn F. White, B.A., LL.B.
A. INTRODUCTION
In Allen v. Corporation of the County of Renfrew,1
the Honourable Justice Hackland of the Superior Court of
Justice (Ontario) had occasion to determine whether Council
for the Corporation of the County of Renfrew ("Council")
had violated the freedoms of a local resident who occasionally
attended Council meetings by opening its meetings with a
"non-denominational" prayer that conveyed a religious,
though not specifically Christian, message.
Mr. Allen, a member of the Humanists Association of Canada,
and who described himself in the litigation as a "Secular
Humanist," objected to the use of the non-denominational
prayer to open Council meetings. The basis for his objection
to the non-denominational prayer was that it expressed conviction
in a deity, and thereby violated his rights to freedom of
conscience and religion protected under the Canadian
Charter of Rights and Freedoms, 1982 ("Charter").
In support of his claim, Mr. Allen submitted an expert statement
to the Court indicating that the humanist beliefs that he
held constituted a "religion from an academic perspective."
In this regard, it was Mr. Allen's position that the Council's
non-denominational prayer, in assuming the existence of
God and by calling on the blessings of God, constituted
the imposition of a state sanctioned belief in a God. The
expert statement of Dr. Gualtieri submitted by Mr. Allen
provided the opinion that:
Any activity which claimed to be non-sectarian
in the sense of encompassing all religions (i.e. symbolically
mediated world-and-value-views) in a pluralist society
would have to accommodate the Humanist phenomenon.
The Renfrew County Council prayer is
clearly theistic: it is not non-sectarian since it intrinsically
excludes the Humanist and other analogous, modern, secular
movements. Its use within the official agenda of the
Renfrew County Council effectively discriminates, at
some levels, against those whose faith is not formed
by its supernaturalistic, theistic symbols and cosmology.
B. THE DECISION
Addressing the question of whether Council's opening prayer
was a coercive effort to compel religious observation, Justice
Hackland noted that Council had very recently implemented
the practice of opening Council meetings using the non-denominational
prayer in order to reflect compliance with the decision
of the Ontario Court of Appeal in Freitag v. Penetanguishene
(Town)2 ("Freitag"),
which found that the Town of Penetanguisheine had violated
the Charter protected rights of Mr. Freitag to freedom of
conscience and religion by opening its Council meetings
with a Christian prayer.
Despite the evidence of Mr. Allen's expert witness, and
in accordance with the principles reflected in the precedent
ruling of Freitag, Justice Hackland stated:
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 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 nondenominational,
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.
In coming to this conclusion, Justice Hackland also noted
that the very preamble of the Charter contains a specific
reference to the supremacy of God. Justice Hackland then
went on to discuss the importance of preambles as "helpful
interpretive device[s]," citing the Honourable
Chief Justice Lamer's comments in a 1997 Supreme Court of
Canada decision that "the preamble…recognizes
and affirms the basic principles which are the very source
of the substantive provisions of the … Act."3
Having concluded that the purpose for Council's recital
of the opening prayer was not to "impose a Christian
or other denominational religious stamp on the proceedings,"
Justice Hackland considered whether this was the effect
of its recital. In his decision, Justice Hackland cited
the seminal decision of Justice Dickson in R. v. Big
M Drug Mart Ltd. as follows:
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.4
In summary, Justice Hackland concluded that the "non-denominational"
prayer is not "in substance a religious observance,
coercive or otherwise," and did not compel Mr. Allen
to engage in a Christian practice, as was the case in Freitag.
As a final comment regarding the contravention of sec 2(a)
of the Charter, Justice Hackland stated:
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.
Finally, Justice Hackland concluded that the practice of
reciting the non-denominational prayer to open Council meetings
is also protected by section 1 of the Charter, as it could
be "justified as a reasonable limit prescribed by
law which can be demonstratively justified in a free and
democratic society." In defence of this conclusion
it was noted that the Council's bylaws require that a prayer
be recited and may imply a reference to God.
C. COMMENTARY
In his decision dismissing Mr. Allen's application, Justice
Hackland determined that even if the practice of reciting
the prayer violated the applicant's freedoms under section
2(a) of the Charter, it was protected by section 1. In spite
of this clear protection provided under section 1 of the
Charter, Justice Hackland engaged in a lengthy interpretation
of the issues pertinent to section 2(a), and supporting
the proposition that the recognition of God--albeit a non-denominational
reference to God--plays an important role in governmental
forums and functions, and that such a role is worthy of
protection. In concluding that the non-denominational prayer
used by the Council does not violate section 2(a) of the
Charter, Justice Hackland pointed out that key Canadian
legal documents, such as the Constitution Act, 1867,
explicitly reflect a recognition that God forms an integral
cornerstone in our legal history, and that the Charter itself
explicitly acknowledges God's supremacy in the preamble,
which begins with the statement: "Whereas Canada is
founded upon principles that recognize the supremacy of
God and rule of law." Justice Hackland further noted
the prevalence of references to God in prayers recited in
the Ontario Legislature, and the House of Commons; in our
National Anthem, and other anthems; in coats of arms, oaths
and many other governmental contexts.
It is too often forgotten that the core freedoms which
are now enshrined in the Charter first found their true
expression as a direct result of demands for religious freedom.
The preamble to the Charter further recognizes that those
freedoms arise directly from, and form a reflection of,
the supremacy of God, and our society's willingness to recognize
that supremacy. Religion has recently been described by
the Supreme Court of Canada in Syndicat Northcrest v.
Anselem5 as typically
involving
…a particular and comprehensive
system of faith and worship. Religion also tends to
involve the belief in a divine, superhuman or controlling
power. In essence, religion is about freely and deeply
held personal convictions or beliefs connected to an
individual's spiritual faith and integrally linked to
one's self-definition and spiritual fulfillment, the
practices of which allow individuals to foster a connection
with the divine or with the subject or object of that
spiritual faith.
That God still plays a role in the lives of a majority
of Canadians was identified by Michael Adams in his book
Sex in the Snow; Canadian Social Values at the End of
the Millennium6 where
he noted that 83 % of Canadians polled indicated that they
believed in God. While such evidence is not presented to
advocate a tyranny of the religious majority over an atheistic
or secular minority, it does underscore the importance that
the belief in a deity plays in the greater Canadian Society
as a whole. To have ruled that the "non-denominational"
prayer should be removed because it referenced God would
have effectively reworded the Charter's preamble to read
"Whereas Canada is founded upon principles that recognize
the supremacy of God and the rule of law, God can no longer
be mentioned in public forums for fear that such recognition
might offend someone." Such a ruling would have resulted
in the imposition of a new "religion" of human
secularism on all Canadians. This important ruling affirms
the fundamental connection that presently exists between
the recognition of the supremacy of God and the freedoms
and rights espoused by our Charter.
Endnotes
1 (2004) 69 O.R. (3d) 743.
2 (1999), 47 O.R. (3d) 301.
3 Reference Re: Public Sector Pay Reduction Act
(1997) 150 S.L.R. (4th) 577.
4 [1985] 1 SCR 295.
5 [2004] S.C.C. No. 47.
6 Adams, Michael. Sex in the Snow, Canadian Social
Values at the End of the Millennium (1997) Viking Press.
