Indi’s MLQ v Saguenay review: The Tribunal ruling

Before the Supreme Court hearing for Mouvement laïque québécois v Saguenay (City), and before the debacle at the Québec Court of Appeal, the discrimination complaint was heard by Québec’s human rights tribunal.

Alert readers of the series may have noticed that I covered the events leading up to the complaint, then skipped what happened at the Tribunal des droits de la personne (TDP; or “Human Rights Tribunal”) and went straight to the Court of Appeal, then the Supreme Court.

(That also means I skipped the Commission des droits de la personne et des droits de la jeunesse (CDPDJ; Québec’s human rights commission) investigation. However, the only parts of that investigation that are on the public record are the parts that were brought up at the Tribunal hearing, so there’s really not much I can say about it anyway.)

The reason for the omission is simply that I wanted to get the administrative law stuff out of the way. The primary reason the Supreme Court heard the case – and the way the Court of Appeal was able to insert its own bullshit opinion – was because of issues with the standard of review, so I had to talk about what was going on. But this is Canadian Atheist, and readers aren’t really all that interested in the technicalities of administrative law. The fun stuff is all about the prayer and the state’s duty of religious neutrality. And that’s where we’re at now – we’re past the administrative law stuff, and now we’re into the fun stuff.

The Tribunal hearing doesn’t hang on the technical details of administrative law – it brings some of that stuff up, but only to justify that it has jurisdiction over the case, which was never really in doubt (the Court of Appeals mental gymnastics notwithstanding) so it’s not really relevant. Instead we can focus on more interesting details: such as why the Tribunal found the prayer discriminatory.

Thus far in this story we’ve had two heroes – original complainant Alain Simoneau and Supreme Court Justice Clément Gascon (though I suppose Justice Rosalie Abella deserves a special mention) – and two villains – Saguenay Mayor Jean Tremblay and Québec Court of Appeal Justice Guy Gagnon. For a while – until we got to the Supreme Court post and Gascon – it looked bad, with two villains to the lone hero Simoneau, though it finally balanced out. Well today the scales tip again, and this time it’s to the side of justice. Our third and final hero of the series is Québec judge, and head of the TDP at the time of the hearing, Michèle Pauzé.

[Photo of Michèle Pauzé]

Michèle Pauzé

So here’s a quick recap. Alain Simoneau asked Saguenay Mayor Jean Tremblay to stop praying in city council meetings on December 4, 2006. The Mayor refused even after being warned that Simoneau would file a complaint, so that’s just what Simoneau did. With the help of Mouvement laïque québécois (MLQ) on 28 March 2007, he filed a formal complaint with Québec’s Commission des droits de la personne et des droits de la jeunesse (Commission for human rights and youth rights). The Commission wrapped up their investigation May 2008, and agreed Simoneau had a valid case. However, they decided not to pursue it because a) Simoneau and MLQ were plenty capable of pursuing it themselves; and b) they’d just recently done a similar case (probably the Laval case), so they didn’t want to duplicate their efforts.

While all this was going on, Tremblay and his cronies on the city council hastily passed a by-law – VS-R-2008-40 – that changed the prayer wording to something less obviously Catholic and more ‘non-denominational’, added time for non-believers to leave and come back if they didn’t want to participate and a ‘moment of silence’, and enshrined all that as official city practice. The purpose of the by-law, as admitted by Tremblay and his gang, was specifically to undercut the validity of Simoneau’s complaint. Naturally Simoneau couldn’t just ignore this development, so he included it in his application to the Tribunal.

[Photo of Alain Simoneau]

Alain Simoneau

Simoneau’s complaint made the following requests:

  • Declare by-law VS-R-2008-40 invalid.
  • Tell the Mayor and Councillors to stop praying.
  • Remove religious symbols from public meeting spaces.
  • Require moral and punitive damages of $50,000.
  • Reimburse legal fees up to $100,000.

I’ve mentioned the issue with the religious symbols before. While Simoneau asked the Commission to investigate them, the Commission declined. The Tribunal decided that it had the right to conduct its own investigation (and ultimately found them discriminatory), but both the Court of Appeal and the Supreme Court agreed that the Tribunal did not have that right. So in the end, nothing was ruled in the case of the religious symbols – they’re still allowed, but of course another challenge could be brought against them, and let’s face it, they’d almost certainly be ruled against.

However, since they were discussed in the Tribunal ruling (albeit to no avail in the end), and because they’re actually a source of some amusement, I’ll describe then again.

Saguenay was formed in a 2002 amalgamation between the cities of Chicoutimi, Jonquière, La Baie, and Laterrière, and the municipalities of Shipshaw and Lac-Kénogami, as well as part of the township of Tremblay and two unincorporated areas. Chicoutimi was by far the biggest of the bunch, and remains the largest borough of Saguenay. When they do municipal meetings, they alternate between the former city halls/meeting spaces of Chicoutimi, Jonquière, and La Baie. The two religious symbols at issue were:

  • A crucifix in La Baie; and
  • A statue of the Sacred Heart in Chicoutimi.

There were no religious symbols at issue in Jonquière, because meetings there were held in a theatre.

Now, to be clear, these are not small and hard-to-notice symbols. The crucifix is 28×13 (71 cm × 33 cm) and 6 (1.83 m) off the ground, and the statue is 2×1×12 (61 cm × 30 cm × 30 cm) and 9 (2.74 m) from the floor, and fitted with a light – both on the Mayor’s right during meetings. No one seems to know exactly where the statue came from – it was in the police station (which was in the basement of the town hall) until around 1977, owned by the police union, then it was given to the city administration and moved into the meeting hall. The crucifix was made in the 1980s by a renowned local artist – specifically commissioned by the city because the old one was quote-unquote “defective”.

Now I’m going to skip right down to the analysis, because most of the details of the testimony were already covered in the post describing Simoneau’s story. But if you’ve got some free time, I do recommend reading the Tribunal’s record of the testimony (TDP pp.33–132). It’s not heavy reading – really, just a bunch of points in bullet form – and it’s quite enlightening. The expert witness testimony (TDP pp.133–192) is a bit thicker – it requires more thought to pick apart. It’s also interesting, but I’ll be going through the main points of it.

The analysis

So the first thing Pauzé does is clarify the questions at issue (TDP p.193):

  • Does the by-law VS-R-2008-40 interfere with Simoneau’s right to full and equal recognition and exercise of his freedom of conscience and religion, without discrimination based on religion?
  • If so, did Tremblay establish a defence consistent with the Charter?
  • Was there unjustified discriminatory interference with Simoneau’s rights, and if so what remedies are appropriate?

Take note that there is no mention of the state’s duty of neutrality in that list of questions. I bring this up because that was the key to the shell game played by the Court of Appeal – they defined the “primary” (QCCA p.37) question as the question of a state’s duty of neutrality, and used that as justification to throw out the Tribunal’s ruling. In fact, the Tribunal only brings up the state’s duty of neutrality in passing (TDP p.199), taking it as a given based on a quote from (former) Supreme Court Justice LeBel (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village) [2004], p.65):

This fundamental freedom imposes on the state and public authorities, in relation to all religions and citizens, a duty of religious neutrality that assures individual or collective tolerance, thereby safeguarding the dignity of every individual and ensuring equality for all.

That’s it. That, and three short paragraphs explaining how the duty of neutrality is relevant in the Simoneau case (note: at that point she’s presuming the duty of neutrality issue is already settled, and she’s just using it to explain the Simoneau case), is literally the entirety of the discussion of the state’s duty of religious neutrality in the Tribunal ruling… and it was really just deferring to a previous Supreme Court ruling. Yet that was what the Court of Appeal seized on to justify overruling the Tribunal’s decision.

Anyway, moving on.

Pauzé starts by making it clear that freedom of religion also means freedom from religion, and thus, that atheists are also protected from being coerced to participate in religious rituals (TDP p.208). The conditions required for a violation of freedom of conscience to be recognized are (TDP p.212):

  • the belief must be sincere; and
  • the belief must be interfered with in a way that is more than trivial or insubstantial.

Now, Tremblay challenged Simoneau’s sincerity early in the dispute, but at the Tribunal hearing he admitted – after hearing about Simoneau’s background – that his atheism was indubitably sincere (TDP p.83). So the first condition was never at issue.

It was the second condition that created problems. The Court of Appeal dismissed Simoneau’s complaint on the grounds that the interference with his beliefs was trivial and insubstantial. They said that since all Simoneau had to do was walk out of the room – or just sit quietly and pretend the prayer wasn’t happening – it wasn’t interfering with his atheist beliefs (QCCA pp.87–115). The Supreme Court called that bullshit and said forcing people to leave – or worse, be forced to participate in a religious ritual – was definitely non-trivial and substantial interference (SCC p.140). The definition of “trivial or insubstantial interference” is interference that doesn’t threaten to change their behaviour to something they wouldn’t otherwise do… yeah, forcing people to either attend a prayer service or leave the damn room is pretty clearly coercing atheists to do something they wouldn’t otherwise do.

Pauzé, however, handled it simply. Very simply; she deals with the whole issue in a single paragraph. She noted that the Supreme Court had already said that any state compulsion on matters of belief is always very serious (TDP p.217). Game, set, and match.

The religious symbols

Now we get to the fun part. As you’d expect, in their attempts to defend the prayer, Tremblay and his lawyers threw out every argument they could dream up, no matter how loopy. One of the loopier tactics: trying to argue that the prayer, the crucifix, and the Sacred Heart statue weren’t religious. Yeah, really.

But of course, the defendants made these arguments in earnest – they even used expert witnesses to back them up – so Pauzé had to respond in equal seriousness. However – and this is why I named her a hero – as you read her comments, you can almost feel her eyes rolling in disdain.

Let’s start with the crucifix. Through testimony, the Tribunal heard that the crucifix in La Baie was actually commissioned by the city in the 1980s. They actually found the guy who commissioned it – Michel Bergeron, former municipal councillor. He apparently decided that the existing crucifix was… “defective” (TDP p.112). Defective, how? Good question. Maybe it was no longer serving as an effective antenna to the big guy in the sky.

[Photo of Agochin statue by Victor Daillaire]

Sculpture of the sea monster Agochin, by Victor Dallaire

Whatever the reason, Bergeron commissioned local artist Victor Dallaire to sculpt a new crucifix. Now, Dallaire is actually a pretty famous sculptor. You can see an example of his work on the right. But apparently he used to get a lot of business making crucifixes back in the days when religion was stronger (his words, TDP p.115).

Dallaire referred to the crucifix as a work of art (TDP p.114) – wording that was seized upon by the Court of Appeal to claim it wasn’t religious. (The Court of Appeal also bizarrely claimed it wasn’t a valid crucifix because, as Dallaire noted, the Jesus figure didn’t have nails in the hands. (QCCA p.122)) However, Dallaire specifically said that he did crucifixes when religion was stronger, and that he designed the crucifix the way he did – with unnailed palms open to the room – so that Christ is speaking to the mayor and the councillors. He also said that he believed the crucifix was blessed.

Despite all this, Tremblay’s defence still tried to claim that the crucifix was merely a work of art, and not religious, and his two expert witnesses tried to back him up.

During their hearing, the Tribunal allowed three expert witnesses (in addition to 10 other non-expert witnesses, including Simoneau, Tremblay, some other city officials, and so on). Two of those expert witnesses were for the city, one was for Simoneau. The city’s expert witnesses were:

  • Solange Lefebvre had held the religion, culture and society chair of the faculty of theology and sciences of religions at the Université de Montréal since 2003. She had a Ph.D. in theology from the Université de Montréal, as well as a D.E.A. (diplôme d’études approfondies, an advanced degree) in social anthropology and ethnology from the École des hautes études en sciences sociales in Paris.
  • Gilles Bibeau had a Ph.D. in anthropology from Université Laval and a Ph.D. in comparative religions from the National University of Zaire. He was a full professor at the anthropology department of the Université de Montréal, a researcher and member of the Centre de recherche de l’hôpital Sainte-Justine, and a member and director of the Groupe interuniversitaire de recherche en anthropologie médicale et en ethnopsychiatrie (GIRAME).

MLQ’s expert witness was:

  • Daniel Baril was a journalist with a Bachelor’s degree in religious science from the Université du Québec (1975) and a Master’s in anthropology from the Université de Montréal (2003). He is a member of the Association des anthropologues du Québec. He was a founding member of MLQ, had been its president in the past, and was currently vice-president.

I’m just going to lay it out here: Gilles Bibeau was a bit of a tool. He even went off on a rant at one point about atheists trying to impose some kind of atheist religion on believers, and said that would be a monumental joke, and these people must not impose that on others (TDP p.173). He ended up having to apologize for his rant. Solange Lefebvre, by contrast, deserves some credit. Although her arguments were ultimately found to be incoherent, she did make some worthwhile contributions to the discussion.

It was Bibeau who primarily tried to argue against viewing the crucifix as religious. He used bafflegab about collective identity, and the historical reality of the common culture to claim that no one was being forced to recognized the crucifix as having any particular value (TDP p.172). In other words, because the symbol is part of Québec’s history, it’s no longer a Christian crucifix… it’s now a Québec crucifix.

Yeah, Pauzé didn’t buy it either.

Lefebvre was at least smart enough to realize that trying to pretend the crucifix isn’t religious is a sucker’s game. Instead, she tried to pass it off as no big deal, saying it wasn’t ostentatious (TDP p.156), and snarking off with the comment that she almost expected to see a chapel (TDP p.157).

But Pauzé wasn’t impressed. In fact, what particularly impressed her was a point raised by Daniel Baril. Baril pointed out that they occasionally hung palm fronds from the crucifix, and noted – wryly, I imagine – that a palm frond is not hung on a work of art (TDP p.182). Mic drop.

The situation was much the same for the Sacred Heart statue. No one knows where the statue came from. The Tribunal called a witness was a police offer in the 1960s, and he seemed to think the statue had always been around. At the time, the police station was in the basement of the town hall, and police officers did double duty as firefighters (gotta love small towns), and apparently there was a bit of a superstition surrounding the statue. The officers believed the statue was lightning rod to prevent accidents at the sites of fires, and for that reason, they always had it lit up with a little red ‘votive’ light that was supposed to be never turned off (TDP p.117). When the cops moved out of the basement around 1977, they gave the statue to the city council.

As if the bit about the statue being a totem of luck wasn’t enough to make it clearly a religious symbol, the retired cop said point blank: The Sacred Heart is religious (TDP p.118).

So much for the religious symbols. On to the prayer.

The prayer

There really wasn’t much difficulty in deciding the prayer was religious (which just makes the Court of Appeal’s contrary decision all that more bizarre). At one point Pauzé lists the evidence to show how much there was: “the testimony heard, including that of the mayor; the argument raised by the defendants’ attorney in her representations; the excerpt from the preamble of the bylaw; and the practice of the mayor, the municipal councillors, the clerk and the general manager of Ville de Saguenay.” (TDP p.228).

Again both of Tremblay’s expert witnesses tried to argue the prayer wasn’t religious.

Bibeau said it was an “identity ritual” that doesn’t give the meeting a “religious connotation”. Technically he’s right, though completely off the point: the prayer doesn’t make the rest of the council meeting religious… but that doesn’t make the prayer secular.

Lefebvre made a number of arguments. She claimed:

  • that the prayer was a “private prayer”, and implied that it was intolerant not to accept it, because it covered so many religions, and for those it doesn’t, well, we live in a society where religions always tolerate the existence of other beliefs (TDP p.150).
  • that “religious modernity” has created the concept of “religious individuation”, where individuals decide – according to their own values and beliefs, not the codified values and beliefs of organized religions – whether something is religious or not. Basically she’s saying the prayer is just a Rorschach ink blot, and if you see religion there, that’s your perspective, not objective reality (TDP p.152). Thus, when Tremblay and the other councillors were crossing themselves and calling on the Father, Son and Holy Spirit into the microphone, that was just them expressing their interpretation of it, which they have a Charter right to do (TDP p.158).
  • that the prayer was just by the committee members and for the committee members; that because it was given “behind closed doors” (that is, within city council meetings), it was about them and not the public (TDP p.164). The fact that the public is invited to attend, and join in the prayer, is only the sweet and friendly councillors being inviting, and sharing their private declaration of faith with everyone.
  • that the prayer was just maintaining tradition. Oh, but not the tradition of treating nonbelievers as heretics and persecuting them, of course. No, no, it’s maintaining the (hypothetical) Catholic tradition that welcomed nonbelievers. So nonbelievers shouldn’t have any problem with it (TDP p.153).

Actually, Lefebvre seemed strangely fanatical about maintaining historical traditions. She commented (outside of the hearing) that “the absence of religious tradition can make one crazy” (TDP p.166), and that not pandering to the historical practices of the majority will destroy “social peace” (TDP p.161).

So this is the crap that Pauzé had to wade through to make her decision. But how she does it is beautiful.

First she actually notes that Tremblay’s experts desperately tried to argue that the prayer wasn’t religious (TDP p.229). Then she goes:

  • The by-law enshrining the prayer explicitly stated that it was for a religious purpose (TDP p.230).
  • As MLQ’s expert witness Baril noted, both versions of the prayer (pre by-law and post by-law) literally include appeals for divine intervention (TDP pp.231–232).
  • Tremblay repeatedly insisted that he was fighting for the prayer for religious reasons (TDP p.233).
  • Citing Baril (TDP p.188), even if Lefebvre’s claim about “religious individualization” means that individuals can find different religious meaning from things, that doesn’t magically make obviously religious things suddenly devoid of any religious meaning. It doesn’t magically make a prayer to God – pleading for God’s intervention – an “atheist prayer” (TDP p.234).

I’m just going to quote her wrap up of the “is prayer religious” issue, because shows how unimpressed she was with the logic of Tremblay’s ‘experts’ (TDP pp.235–237):

À ce même titre, le Tribunal ne peut faire sienne l’opinion de madame Lefebvre selon laquelle la prière jouerait un rôle métaphorique permettant à chaque individu d’y puiser ce qu’il veut, à telle enseigne qu’il ne serait pas même pertinent d’en analyser le contenu. Accepter le processus métaphorique auquel nous convie l’experte Lefebvre aurait pour effet de créer une distorsion de la réalité qui ne correspond pas aux témoignages des principaux intéressés.

D’ailleurs, madame Lefebvre semble jongler difficilement avec cette dualité de perceptions religieuses. D’une part, elle témoigne qu’il s’agit de la prière des conseillers et non de celle des citoyens, alors que la preuve indique que les conseillers ne récitent jamais la prière lorsque les citoyens ne sont pas présents, tel lors de la tenue des conseils exécutifs qui se tiennent à huis-clos. D’autre part, consciente de l’impact que peut avoir cette prière sur les citoyens – même à supposer, comme elle le prétend, que la prière ne s’adresse pas à eux – madame Lefebvre semble vouloir en atténuer les effets en indiquant qu’elle serait inclusive d’une forte majorité de citoyens canadiens parce que, à son avis, « elle fait appel à des valeurs fondamentales ».

Dans la même foulée, l’expert Bibeau mentionne que l’objectif de la prière est de « mettre les conseillers dans le sérieux de leurs tâches ». Il doute cependant que la récitation d’une prière puisse avoir sur monsieur Simoneau un quelconque effet négatif. La prière pourrait donc avoir un effet cognitif positif sur les conseillers ayant la foi, mais n’aurait éventuellement aucun effet cognitif négatif sur ceux qui, présents aux assemblées publiques, ne l’ont pas? Le Tribunal est à même de conclure par lui-même que ces deux assertions sont irréconciliables.

(For that same reason, the Tribunal cannot subscribe to Ms. Lefebvre’s opinion that the prayer plays a metaphorical role that allows each individual to draw from it what he or she wishes. Hence, it would not even be relevant to analyze its content. To accept the metaphorical process, as expert Lefebvre urges us to do, would distort reality so that it would not correspond to the testimony of the principal interested parties.

In fact, Ms. Lefebvre seems to have difficulty juggling that duality of religious perceptions. Firstly, she testified that it was the councillors’ prayer, not the citizens’, whereas the evidence indicates that the councillors never recite the prayer when the public is not present, such as at meetings of the executive committees, which are held behind closed doors. Secondly, aware of the impact that the prayer can have on citizens—even assuming, as she contended, that the prayer is not for them—Ms. Lefebvre seemed to want to mitigate its impact by saying it would be inclusive of a strong majority of Canadian citizens because, in her opinion, “it appeals to fundamental values”.

In the same vein, expert Bibeau said that the objective of the prayer is to place “the councillors in the serious part of their work”. However, he doubted that the reciting of a prayer could have any negative impact on Mr. Simoneau. Thus, the prayer could have a positive cognitive impact on the councillors who have faith, but would have no negative cognitive impact on those who are present for the public meetings but have no faith. The Tribunal is able to conclude on its own that these two assertions are irreconcilable.)

I love the last part. See, it’s not enough to claim that the prayer isn’t religious, or that it doesn’t discriminate against atheists, and so on… you also need to give a reason to justify the councillors doing it at all. If it possibly discriminates, what is the purpose of doing it? Well, the arguments for that are that a) it perpetuates tradition, which Lefebvre apparently thinks is the only thing keeping our society from turning into Mad Max; and b) it supposedly helps put the councillors in a state of mind that makes them do their job better. But as Pauzé gloriously observes… you can’t claim on the one hand that the prayer helps the councillors’ state of mind, yet on the other it has no effect at all on Simoneau’s. Either the prayer can impact people’s state of mind or it can’t. If it can, then it can obviously be discriminatory, and if it can’t, then it’s pointless in the first place.

So, the prayer was definitely religious. It definitely interfered with Simoneau’s atheist beliefs (or lack thereof) in a way that was not trivial or insubstantial (because any state interference with people’s beliefs is not trivial or insubstantial). So the only question that remains is whether Tremblay managed a satisfactory defence of the practice.

Well, no. Tremblay had three arguments:

  • The prayer is just tradition, and the state has the right to perpetuate tradition.
  • Tremblay and the councillors have a Charter right to pray, and Simoneau can’t deny them that.
  • Okay, fine, the prayer is discriminatory, but they created a reasonable accommodation for Simoneau by allowing him to step outside.

None of those arguments particularly impresses:

  • ‘Tradition’ is not a legitimate defence for a discriminatory practice. If it were, then it would have been a legitimate argument against giving women the vote that ‘traditionally’ only men were allowed to vote.
  • The rights of individuals do not extend to when they are acting as officials of the state. Once you start acting in the role of a state official, you are now working with both the powers and the restrictions that go along with being a state official. Tremblay and the councillors have the right to pray as they please in any situation where they are not acting in their official roles.
  • The alleged reasonable accommodation is that that the by-law allows time for Simoneau to leave and come back after the prayer. Pauzé’s counter to this is slightly different from that of Supreme Court Justice Clément Gascon, so I’ll describe both below.
[Photo of Clément Gascon]

Clément Gascon

Gascon, writing the majority reasoning for the Supreme Court decision, focused on the specific accommodation: giving non-believers a chance to leave and come back. He argued that this entire class of accommodations were not really accommodations at all – they were simply adding to the discrimination (SCC pp.122–125). When you have a practice designed for a certain belief group, and the only way to access an exemption is for members of other belief groups to publicly identify themselves (such as by standing up and leaving the room, or by formally applying for an exemption), what you’re doing is attaching big neon signs to the outsiders, identifying them as such. That is not reasonably accommodating them.

Pauzé’s reasoning doesn’t contradict Gascon’s, but she looks at the problem from a higher level. The reasonable accommodation defence only applies when the original discrimination is justified for a reasonable goal “be it safety, efficiency, or any other valid object” (TDP p.299), and when the purpose of the accommodation is to enable the people discriminated against to access that goal. If the discrimination isn’t justified to begin with, you’re wasting your time trying to claim reasonable accommodation defences for it. To put it in simple terms: You can’t justify an unreasonable discrimination with a reasonable accommodation.

And that wraps it up for my commentary on the Tribunal ruling.

While the later Court of Appeal and Supreme Court rulings revolved largely around administrative law technicalities – specifically the standard of review for administrative tribunal rulings – the Tribunal ruling was primarily about the juicy stuff: whether the prayer and symbols were actually religious, whether they interfered with atheists in a non-trivial and substantial way, and whether any defence (tradition, the Charter rights of Tremblay or the councillors, reasonable accommodation) could save them.

Nobody reading this will be surprised that the prayer and symbols were indeed religious. Nevertheless, reading the defence claims presented for why they’re not religious are instructive, and entertaining. The main one was that these things are now just ‘traditions’, devoid of religious meaning, and that if anyone finds religious meaning in them, well, that’s just their personal interpretation. The response is that no amount of tradition can completely remove the religious significance of an intrinsically religious ritual, and that if the people conducting the ritual say it’s religious, it damn well is.

Determining whether something interferes with someone’s beliefs in a discriminatory way can seem like a subjective thing, but there are pretty clear rules. Interference is as obvious as “would the person behave the same way in absence of the alleged interference?”, and discrimination is simply a matter of checking whether the interference occurs selectively on the grounds of one of the protected classes (race, religion, etc.). Whether the interference is significant – that is, substantial and non-trivial – is a bit harder to determine, and it requires investigation on a case-by-case basis. But whenever it is the state interfering in personal conscientious or religious belief – as in this case – it’s always non-trivial and substantial. (But even without that point, I’d say making people get up and leave the room, or be forced to sit through some other religion’s rituals, is pretty friggin’ non-trivial and substantial interference.)

Even when there is substantial and non-trivial discriminatory interference, it might still be tolerable if there is a reasonable accommodation, or if there are other rights at stake. In this case, there were no other rights at stake – the state’s right to tradition does not allow the continuation of discriminatory practices, and Tremblay and the councillors’ religious rights don’t apply when they are acting in the role of state officials. And as for reasonable accommodations, they only save you when the original practice had a legitimate reason (safety, efficiency, etc.) in the first place. There was no valid justification for saying the prayer to begin with, so it couldn’t be protected by providing reasonable accommodations around it.

There was actually quite a bit more discussed, particularly with regards to Solange Lefebvre’s testimony. However, I’ll put that off until a future instalment.

Leave a Reply

Your email address will not be published. Required fields are marked *

Help

WordPress theme: Kippis 1.15