Like A Prayer: How The Supreme Court’s Freedom Of Religion Decision In Saguenay Affects Administrative Law And The Admissibility Of Expert Evidence

The Supreme Court of Canada's recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 ("Saguenay") is undoubtedly of interest to all Canadians with respect to the Court's conclusion ordering a municipality and its mayor to cease the recitation of a prayer at city council meetings, on the basis that it breached the state's duty of neutrality and was thus a discriminatory interference with an individual's freedom of conscience and religion.

However, Canadian lawyers and legal observers will likely find the decision to be of particular interest in light of the way this conclusion was reached. In particular, the Court's analysis provides helpful guidance on the appropriate standard(s) of review for a statutory appeal and the appropriate considerations in determining that an expert witness is sufficiently independent and impartial for his or her evidence to be admissible.

Three key principles, discussed in greater depth below, emerge from the Court's analysis:

The appropriate standards of review where a statute provides for an appeal from a decision of a specialized administrative tribunal are those that apply on judicial review (emerging from Dunsmuir), not those applying to appeals from a court's decision (set out in Housen v Nikolaisen). Different standards of review can sometimes apply to separate aspects of one decision, depending on the questions being analyzed. Notably, Justice Abella delivered concurring reasons disagreeing with the majority on this point. Although an expert's opinion must be independent and impartial, a lack of independence does not necessarily disqualify an expert; more than a simple appearance of bias is required to render expert testimony inadmissible. Rather, it must be determined "whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case". Background

Saguenay involves a complaint made by Alain Simoneau and the Mouvement laïque québécois (collectively, the "Appellants") to the Quebec Human Rights Tribunal (the "Tribunal"), against the City of Saguenay and its mayor, Jean Tremblay (collectively, the "City") in connection with the recitation of a prayer at the start of the municipal council's public meetings.

Mr. Simoneau was a resident of Saguenay who considered himself an atheist, and who regularly attended city council meetings. Each meeting started with the mayor leading a prayer that referred to God and making the sign of the cross while saying "in the name of the Father, the Son, and the Holy Spirit" before and after the prayer.

Mr. Simoneau asked the mayor to stop the practice and, when he refused, the Appellants filed a formal complaint to the Commission des droits de la personne et des droits de la jeunesse (the "Commission") on the basis that the practice infringed Mr. Simoneau's freedom of conscience and religion protected by the Quebec Charter of human rights and freedoms (the "Quebec Charter"). The Commission determined the evidence was sufficient to submit the dispute to the Tribunal.

Case History

After reviewing the evidence, including the testimony of three expert witnesses, the Tribunal concluded that the prayer was religious in nature and that the City was showing a preference for one religion to the detriment of others by having it recited. The Tribunal determined that this was a breach of the state's duty of neutrality, that the prayer interfered with Mr. Simoneau's freedom of conscience and religion in a manner that was more than trivial or insubstantial, and that the interference was discriminatory.

The City appealed the Tribunal's decision to the Quebec Court of Appeal (pursuant to the Quebec Charter). The Court of Appeal's main reasons, written by Gagnon JA, began by considering the appropriate standard of review. The Court held that the appeal was ultimately about the religious neutrality of the state, a matter of importance to the legal system over which the Tribunal did not have exclusive jurisdiction. As a result, the Court applied a correctness standard of review and proceeded to disagree with the Tribunal's findings, holding that the duty of neutrality did not require the state to abstain from...