TORONTO – The Supreme Court of Canada told a Quebec town Wednesday its councillors couldn’t pray before council sessions. But Canada’s parliamentarians recite a prayer before each session in the House of Commons.
Could today’s ruling put an end to that prayer? The ruling won’t have a direct effect, banning prayer and religious symbols in government institutions across the country, but as York University law professor Benjamin Berger said in an interview Wednesday, it will certainly lead to questions.
“I think there’s little doubt that this decision makes the practice of the House of Commons subject to renewed and interesting kinds of scrutiny,” he said.
The Supreme Court said Wednesday in a unanimous decision that beginning city council sessions with a prayer infringes on freedom of conscience and religion enshrined in the Charter of Rights and Freedoms, putting an end to a nine-year legal battle filed by atheist Alain Simoneau against Saguenay Mayor Jean Tremblay.
But an almost identical prayer is said before House of Commons sessions. The House of Commons prayer was actually used in defence of the Saguenay prayer, but ultimately the argument was rejected.
The lawyer representing Mayor Tremblay suggested the two prayers were, in essence, the same. And they are; there’s very little difference between the two.
The context is different
“I think there’s no doubt that people will take Saguenay, the decision in the Saguenay case, and look afresh at a number of different practices in our public space perhaps including Parliament in its own opening prayer, but the context is very different,” Berger said.
The context issue led the Supreme Court to refuse to pass judgment on the parliamentary prayer in its ruling Wednesday.
Municipal councils, as opposed to the House of Commons, make a variety of decisions that impact individual lives closely and so the separation between decision-maker and citizen is significantly closer than that of parliamentarian and constituent.
“So the worry, potentially, at a city council meeting, is that because people are coming before the city council with specific worries about particular things happening in their lives,” Berger said.
“It’s especially important that people have a sense of inclusion and neutrality from the decision maker.”
And the same holds true for the House of Commons; it must remain neutral.
But Members of Parliament are also afforded parliamentary privilege, which, if the prayer were challenged in court, could be utilized to keep it around.
Parliamentary privilege allows some things in Canada’s Parliament, like its internal workings, to be isolated from the judicial branch; the prayer could fall under that privilege, Sarah Whitmore, a lawyer with Torys LLP in Toronto said.
But the government must be neutral, right?
The Supreme Court ruled that Canadian society has given rise to a “concept of neutrality according to which the state must not interfere in religion and beliefs.”
That includes the beliefs of non-believers.
“The state must instead remain neutral in this regard,” the judgment said. “This neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief. It requires that the state abstain from taking any position and thus avoid adhering to a particular belief.”
Part of this neutrality is allowing non-believers, or people who don’t believe in the majority’s religion, from having to publicly declare their non-belief by stepping out of the room to avoid a prayer, Whitmore said.
“The two rights need to be balanced. So the right you might have to practice your religion and to pray, needs to be balanced against someone else’s right not to have to pray.”
‘A continued erosion’
The ruling is similar to an historic ruling which removed prayer from public schools. Wednesday’s ruling doesn’t say anything new on the subject, but instead reinforces previous decisions.