Freitag v. Penetanguishene (Town)

Freitag v. Penetanguishene (Town) Collection Decisions of the Court of Appeal Date 1999-09-23 Docket numbers C29042 Judges Catzman, Marvin Adrian; Laskin, John Ivan; Feldman, Kathryn N. Subject Civil Decision Content 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.”