Freitag v. Penetanguishene (Town), 2013 HRTO 893

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag

Applicant

-and-

The Corporation of the Town of Penetanguishene

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: May 23, 2013

Citation: 2013 HRTO 893

Indexed as: Freitag v. Penetanguishene (Town)

APPEARANCES

Henry Freitag, Applicant

Self-represented

The Corporation of the Town of Penetanguishene, Respondent

Michael Miller, Counsel

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of creed. In response to a request by the applicant to change the venue for the hearing, the parties agreed to conduct the hearing by teleconference.

2The basic facts of this case are not in dispute. The respondent holds public meetings of the town council. The meetings are opened pursuant to a procedural by-law with a call to order and the Mayor’s welcome to the audience, following which, the Mayor asks members of council to rise as he reads the “Town Prayer”:

A Prayer for the Town of Penetanguishene

Almighty God, we give thanks for the great blessings which have been bestowed on Penetanguishene and its citizens, including the gifts of freedom, opportunity and peace that we enjoy.

Grant that we may be worthy custodians of all that has been entrusted to us. Help us to be concerned for what will promote good government. Guide us in our deliberations as members of Council, and strengthen us in our awareness of our duties and responsibilities.

Grant us the wisdom, knowledge, will and understanding to preserve the blessings of the Town for the benefit of all and to make good laws and wise decisions. Amen.

3The opening of council meetings is governed by section 238(2) of the Municipal Act, S.O. 2001, c. 25, which provides that every municipality and local board must pass a procedural by-law governing the calling, place and proceedings of meetings. The Municipal Act does not mandate the opening of council meetings with a prayer. There is no dispute that the respondent passed by-law 2008-41 on May 28, 2008, adding the “Mayor’s Welcome and Town Prayer” to the standard Council agenda headings following the call to order. The parties agree that no one in attendance at the meetings is required to rise and pray and that some members of the public rise while others do not.

4The procedural by-law reflects a long-standing tradition of the Mayor opening council meetings with a prayer. This practice resulted in prior litigation between the parties when meetings were opened with a recitation of the Lord’s Prayer. That history is discussed in greater detail below. In 1999, Mr. Freitag was successful before the Court of Appeal for Ontario in demonstrating that the Mayor’s tradition of inviting members of council to stand and recite the Lord’s Prayer at the opening of council meetings, breached his right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms (“Charter”); Freitag v. Penetanguishene (Town), 1999 CanLII 3786 (ON CA) (“Freitag”).

5Holly Bryce, who holds the position of Town Clerk, testified for the respondent. The testimony of Ms. Bryce was not contested. She explained that the Town Prayer is contained in a by-law, that council meetings are opened with an invitation by the Mayor to council to rise for a recitation of the Town Prayer and that some members of the audience rise while others do not. Ms. Bryce also testified that staff members remain seated during the prayer.

6The respondent set out the following response to the allegations as part of the written material filed in this proceeding:

The Town of Penetanguishene does not feel that Council is in violation of any human rights by permitting the Mayor and Council to partake in the Town Prayer. There is no specific religious denomination honoured by the Prayer and it is meant to be a blessing for all of Council and the citizens without offending any individual.

7The applicant also filed written material and testified in support of his allegations. He is a non-Christian resident of the town who regularly attends council meetings. He feels excluded at council meetings by the recitation of a prayer to “Almighty God” which he perceives as Judeo-Christian in origin and tone. He argues that it is inappropriate for council to adopt a prayer for the entire community, when it does not reflect his beliefs and the beliefs of other community members.

8The applicant testified that the recitation of the Town Prayer is an act of worship or a religious observance from which he is excluded. The applicant stated that he attends council meetings to participate as a citizen in the affairs of local government and not to participate in prayer. Although members of the public are not directly invited to stand and pray, it is the applicant’s observation that the Mayor’s request to council has the effect of causing members of the audience to stand and participate. The applicant does not rise and pray with others in attendance at the meetings and he feels a sense of exclusion and isolation which he described by using the word “outcast”. The applicant testified that his perception is that others look down on him when he does not rise and pray and that this experience has a negative emotional impact on him.

9The applicant is not seeking compensation of any kind. He is seeking a remedy in the form of a direction from the Tribunal prohibiting council from opening town council meetings with a prayer.

Analysis

10There were two threshold issues which were raised by the respondent: whether the applicant’s allegations fall within the prohibited ground of creed and the social area of services.

Services

11The applicant relies on Section 1 of the Code which states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

12The applicant alleges that the respondent is engaged in a service when it holds public council meetings. In Saxon v. Amherstburg (Town), 2011 HRTO 960, the Tribunal commented on the jurisdiction of the Tribunal over a range of municipal activities:

There can be no doubt that a municipality offers many services to the public, which are amenable to this Tribunal’s jurisdiction under the Code, such as policing services, public transit, recreational services, public libraries, and a variety of licences and benefits. It is also clear that the outcome or result of a municipality’s legislative process, such as a bylaw, falls under the jurisdiction of the Code. (para. 14)

13The holding of public council meetings is just one example of an activity in which a municipal government engages for the benefit of its citizens. The meetings offer residents an opportunity to participate in local government and to ensure that decisions which affect their community are made in an open and transparent manner. While the Municipal Act mandates that the respondent adopt a procedure governing the conduct of council meetings, it does not mandate the recitation of a prayer. That decision was made by the members of council who voted to enshrine that practice in a procedural by-law in 2008 following many years of tradition. Decisions which are made during council meetings have been found to be a service: (Hudler v. London (City) (1997), 1997 CanLII 24809 (ON HRT), 31 C.H.R.R. D/500 (Ont. Bd. Inq.)). Observing and participating in meetings is an essential part of municipal democracy and I find that holding council meetings is also a service under the Code.

14At the conclusion of the applicant’s evidence, the respondent made a request to have the Application dismissed because there was no evidence that the applicant had been denied a service. The applicant acknowledged that he was able to attend and freely participate in council meetings and that he had never been sanctioned in any way or asked to leave over his refusal to participate in the recitation of the Town Prayer.

15The respondent’s request to dismiss on this basis was denied during the hearing. The applicant is not restricted to proving that he was denied a service. The applicant did not allege that he was denied a service – he testified that he felt excluded by the recitation of the Town Prayer during the course of the meeting. As a result, I did not dismiss this Application on the basis that the applicant had failed to prove that he had been denied a service.

16A second request to dismiss on the basis that the applicant had failed to describe his creed was also dismissed for the reasons set out below. These rulings made during the hearing did not constitute a finding of discrimination, but rather a decision to proceed to hear the respondent’s explanation and consider the question of discrimination on the totality of the evidence.

The Applicant’s Creed

17There is no dispute that the Town Prayer is a prayer. However, the parties take different positions on how they would characterize the relationship between the prayer and the applicant’s creed.

18The respondent argued that the Application should be dismissed on the basis that the applicant failed to disclose his creed. During the hearing when the applicant was asked by counsel for the respondent about the nature of his creed the applicant responded, “it is none of your business”.

19I will not dispose of the Application on this basis. The respondents are fully aware that the applicant is non-Christian from his Application and the previous litigation. They are also aware that the basis of his claim is that a religious observance takes place at the opening of council meetings. The applicant feels excluded by the act of prayer itself and specifically the act of praying to what he perceives as a Judeo-Christian god.

20While I do not wish to encourage such a defensive response, I do understand that in pursuing this case the applicant is exposed to public questions about the nature and validity of his personal beliefs, which he finds offensive. The applicant also expressed frustration that, in his view, he had already made his objections known about the practice of opening council meetings with a prayer in the case before the Court of Appeal in 1999. The applicant stated that although the 1999 appeal involved the Lord’s Prayer, any difference in wording was inconsequential to him and he had made this known to the respondent prior to filing his Application to the Tribunal.

21There will obviously be some cases where it is incumbent upon the applicant to set out the elements of his or her creed in order to demonstrate how the conduct of the respondent creates an adverse effect. In some cases, the focus will be on the elements of the applicant’s creed that are engaged by what might appear to be otherwise neutral or non-religious conduct on the part of the respondent. The classic example of this is when a work schedule conflicts with a person’s religious observances. In other cases, the focus will be on the respondent’s actions in imposing a form of religious observance on a person who does not share the respondent’s beliefs.

22This case falls into the latter category. The applicant does not have to declare a specific creed or belief system in order to be protected from the imposition of the religious beliefs and observances of others in certain contexts. Clearly he could not complain about the imposition of a religious observance if he voluntarily attended a religious service. Whatever the applicant’s belief system, he testified that it does not include the act of praying before the opening of public council meetings nor does it include belief in the god to whom the appeal for wisdom and guidance is made in the Town Prayer. The applicant’s allegation is that he is exposed to a religious observance at the opening of council meetings which requires him to act in one of two ways: stand and observe the Town Prayer which is contrary to his beliefs, or remain seated and thereby expose to others in attendance that he is a non-believer.

23There was no basis in the evidence for questioning the applicant’s sincerity in asserting that his creed is such that he does not adhere to Judeo-Christian beliefs and that he feels excluded by the act of prayer at public council meetings. The applicant did suggest that he would like to see the Town Prayer replaced with the National Anthem at the commencement of council meetings. He testified that the National Anthem is more appropriate because it is a patriotic anthem and not a prayer. I note that there is a reference to a singular god in the National Anthem; however, this was not sufficient, in and of itself, to raise a question about the applicant’s sincerity about his creed. As a result, I find that the applicant’s allegations fall within the prohibited ground of creed under the Code.

24Having established that town council meetings constitute a service and that the applicant’s allegations fall within the prohibited ground of creed, I now turn to the issue of discrimination.

Discrimination

25It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.

26Discrimination is not defined in the Code; however, it is found where a protected characteristic, in this case creed, is a factor in causing the adverse treatment experienced by the applicant. Where the applicant proves this connection and the respondent is unable to prove a defence, discrimination will be found to have occurred: Moore v. British Columbia (Education), 2012 SCC 61.

27As I previously indicated, the parties were involved in a similar case involving the use of the Lord’s Prayer which resulted in the 1999 decision of the Court of Appeal for Ontario in Freitag. The Charter and the Code are different statutory instruments and a finding of a breach of section 2(a) of the Charter is not dispositive of the allegations of discrimination before me under the Code.

28There are obvious similarities between the two cases. In both cases council meetings were opened by the Mayor with an invitation to council members to rise while a prayer is recited. The applicant argued in both cases that this invitation causes members of the audience to rise and forces the applicant to make a public statement about his creed in refraining from participating. The applicant argued that the effect on him was the same whether the Lord’s Prayer or the Town Prayer was recited at the opening of council meetings.

29There are also some factual differences between the two cases, most notably the wording of the Town Prayer, which is arguably more inclusive than the Lord’s Prayer. The Town Prayer is also now enshrined in a procedural by-law rather than initiated by the Mayor as was the case in 1999. In addition, the Court in Freitag found that the purpose of opening council meetings with the Lord’s Prayer was to impose a Christian moral tone on council meetings, which was not argued before me as the purpose behind the current Town Prayer.

30On the other hand, the stated purpose or intention not to offend any group of persons is not a relevant consideration in an analysis of discrimination under the Code, where the focus is on impact rather than intention. As counsel for the respondent stated when the applicant raised the 1999 decision in Freitag: “that was a different case”. The applicant must prove discrimination on the basis of the principles applied in interpreting the Code.

Adverse Treatment

31A finding of discrimination requires proof of adverse treatment. In Freitag, the Court of Appeal found that members of the public would rise and recite the Lord’s Prayer along with the members of council and accepted that, although the applicant was not compelled, he nevertheless felt great pressure to stand and participate. The Court also found that the applicant had been deterred from running for office because it would be contrary to his personal beliefs to be a member of a council that uses a denominational prayer.

32The Court accepted the applicant’s evidence that although he did not feel forced to stand and recite the Lord’s Prayer, he felt intimidated and uncomfortable with the practice and found that the effect on the applicant was neither trivial nor insubstantial:

the “subtle and constant” reminder of his difference from the majority is what causes the appellant to feel intimidated and uncomfortable at council meetings. (para. 39)

33The applicant relied on these findings and argued that with respect to his experience of adverse impact, the difference in wording between the current Town Prayer and the Lord’s Prayer is irrelevant. The respondent argued as part of its defence that the prayer is non-denominational and therefore did not create an adverse impact on the applicant or anyone else. The unique facts of this case therefore raise the question whether the differences between the Lord’s Prayer and the Town Prayer are relevant to determining a violation of the Code.

34One of the challenges associated with this case is that the current Town Prayer mirrors the prayer now used to open sittings of the House of Commons (the “Parliamentary Prayer”). The only real difference between the Town Prayer and the Parliamentary Prayer is that the Parliamentary Prayer ends with a moment of silence for private reflection and meditation.

35The Parliamentary Prayer was the subject of comment by the Court of Appeal in Freitag. The Court of Appeal observed, in comments that were not necessary to the result, that opening council meetings with the Lord’s Prayer would not pass the test of minimal impairment, since the purpose of reciting the prayer could be served by a non-denominational prayer and a moment of silence similar to the practice of the House of Commons. It is reasonable to assume that the Court was suggesting that the Parliamentary Prayer had the potential to both achieve the respondent’s goals and pass Charter scrutiny.

36In 2004, that issue was directly addressed by the Ontario Superior Court of Justice in Allen v. Renfrew (Corp. of the County), 2004 CanLII 13978 (ON SC) (“Allen”). The Court found that the use of a prayer similar to the Parliamentary Prayer did not breach section 2(a) of the Charter and would, in any event, be saved by section 1.

37In Allen, the Renfrew County Council commenced its monthly meetings with the Lord’s Prayer. The applicant in that case self-identified as a “Secular Humanist” - a person who does not believe in a singular god or in participation in prayers. By the time the case was before the Ontario Superior Court of Justice, the respondent had become aware of the 1999 decision of the Court of Appeal in Freitag and had begun using the Parliamentary prayer in place of the Lord’s Prayer. The applicant in that case argued that the effect on him was nevertheless the same.

38Like the case in Freitag, Allen was decided under section 2(a) of the Charter. The Court undertook an analysis of the nature of the prayer (as compared to the Lord’s Prayer) and the adverse impact on the applicant. The Court found considerable support for concluding that the prayer did not violate the applicant’s freedom of religion in the fact that the preamble to the Charter itself contains a reference to a singular god:

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 that 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 non-denominational, 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. This is to be contrasted with the use of a specifically Christian prayer, such as the Lord’s Prayer or readings from the bible, when non-Christians are involved (i.e. as in Freitag and Zylberberg). In my view, it would be incongruous and contrary to the intention of the Charter to hold that the practice of offering a prayer to God per se, is a violation of the religious freedom of non-believers. This conclusion derives considerable support from the fact that the preamble to the Charter itself specifically refers to the supremacy of God. (para 19)

And at paragraph 21, the Court also stated:

the prevalent practice of making reference to God in public governmental activities provides some reassurance that such references do not have as a purpose the coercive imposition of religious observance and do not offend the religious freedom guarantee in the Charter. As noted, the Charter itself refers to the supremacy of God.

39The Court in Allen ultimately determined that the effect on the applicant’s right to freedom of religion was trivial as compared to the effect on the applicant in Freitag:

The prayer in its present form is not in substance a religious observance, coercive or otherwise and it does not impose any burden on the applicant or any restriction on his exercise of his own beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag, to participate in a Christian or other denominational form of worship. 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. (para 27)

40The Court then went on to find that even if there was a breach of the applicant’s rights, the breach was saved by section 1.

41In my view, it is insufficient for me to simply adopt the reasoning from the section 2(a) Charter cases and find that the prayer before me does not breach the Code. The Code and Charter are different statutory instruments. The Courts in Allen and Freitag were not conducting an analysis of discrimination under the Code, nor were they conducting an analysis of discrimination under section 15, the equality provision of the Charter. Even in the context of section 15 cases, where discrimination is at the core of the analysis, courts have found that there are significant differences in how the Charter and the Code are interpreted: See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593.

42This is not to suggest that findings which relate to such things as the nature of the prayer and the impact on the applicant are irrelevant. However, to the extent that observations from these cases are imported into a Code analysis, they must be considered in a manner which is consistent with the long-standing interpretive principles which govern an analysis of discrimination under the Code. And although there are obvious linkages between section 2(a) of the Charter and the concept of discrimination, the different interpretive approaches to the Charter and the Code raise the possibility of two different outcomes even where the issues and evidence are similar in nature.

43The difference between the two contexts is perhaps most evident in Allen where the Court finds considerable support for its findings in the fact that the supremacy of a singular god is enshrined in the preamble to the Charter. No such reference exists in the Code.

44In addition, in Allen, the Court concluded that the nature of the Parliamentary Prayer created a trivial impact on the applicant which did not support a breach of section 2(a). This finding was based almost exclusively on a perspective other than the applicant’s. To import such an objective approach to assessing the applicant’s experience of adverse impact into my analysis would be inconsistent with the approach generally taken under the Code. See Janssen v. Ontario (Milk Marketing Board) (1990), 1990 CanLII 12505 (ON HRT), 13 C.H.R.R. D/397; Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525.

45In the context of the Code, impact is assessed largely from the applicant’s perspective unless there is good reason to doubt the sincerity of the applicant’s representations in this regard. I see no reason not to accept the applicant’s evidence that the adverse effect on him is no different whether the respondent opens its meetings with the Lord’s Prayer or the Parliamentary Prayer. There was no evidence presented which would challenge the sincerity of the applicant’s representations on this issue.

46If one considers impact from the perspective of a reasonable person, apprised of all of the facts, including the wording of the Town Prayer, the history which preceded it and the findings by the Ontario Court of appeal in Freitag that the purpose of reciting a prayer at the opening of council meetings was to impose a Christian moral tone on council meetings, it would be reasonable to conclude that the current Town Prayer is derived at least in part from Judeo-Christian values and beliefs. The applicant is not required, in my view, to establish that the prayer is exclusively Judeo-Christian in order to claim that as a non-Christian, he is negatively affected by its use at council meetings. Unlike a moment of silence which permits believers and non-believers alike to reflect privately on their own principles and beliefs, the current Town Prayer excludes those individuals who do not believe in invoking the guidance of a singular god in the context of the work of local government.

47Adverse impact is considered under the Code in the context of the applicant’s burden to prove a prima facie case of discrimination. A prima facie case was described by the Supreme Court in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, as one which “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”. The respondent’s evidence explaining the purpose behind its actions may ultimately lead to a finding that the applicant did not experience discrimination; however, that explanation is not considered at this stage in the analysis.

48By contrast, the first question addressed by the Court in Allen was whether the purpose of reciting a prayer at the opening of council meetings was a coercive effort to compel religious observance. The conclusion that the purpose did not lead to a breach of section 2(a) was based in part on evidence from the respondent about the steps taken by the town in reaching the decision to replace the Lord’s Prayer with the Parliamentary Prayer. The respondent in the case before me did not provide an explanation for adopting the Town Prayer.

49While the Court in Allen found the effect on the applicant to be trivial, I would not make the same finding on the evidence before me. The applicant’s burden is to establish a prima facie case. His evidence that he experiences a sense of exclusion because a religious observance, to which he does not adhere, takes place at the opening of council meetings, is sufficient to establish adverse treatment on the basis of creed.

50The remaining question is whether the respondent has proven a defence. Section 11 of the Code permits the respondent to raise the defence of undue hardship in order to justify the act of opening council meetings with a prayer.

51Other than the fact that the Town Prayer is non-denominational and that no one is compelled to stand and recite the prayer, the respondent did not provide any further evidence or argument to justify the practice. There was no evidence that it would constitute undue hardship to accommodate the applicant and other non-believers by opening council meetings with something other than the recitation of a prayer.

52This is also not a case where any balancing of rights is required. While the Town Prayer is arguably broader than the Lord’s Prayer and may resonate with a number of faith communities, there is no right under the Code to have a prayer of any kind recited at the opening of council meetings which one might be required to balance against the impairment to the applicant’s rights which flows from this practice. The Mayor and council members who participate in the recitation of the prayer are doing so as public officials acting in their public roles and not private citizens. There is no necessity, therefore, to accommodate their personal religious beliefs by permitting them to recite the prayer at the opening of council meetings despite the impact on people of other faiths and non-faiths.

Decision and Remedy

53For all of those reasons, I find that opening Town Council meetings with a recitation of the Town Prayer constitutes discrimination under the Code on the basis of creed.

54The applicant did not seek a remedy beyond an order to cease the discriminatory practice. I do not consider it necessary or appropriate from a remedial perspective to make any further orders. I can readily understand the conundrum that the respondent will now find itself in having replaced the Lord’s Prayer with the Town Prayer in a context where it was reasonable to assume that such an act would inoculate them against a future challenge under section 2(a) of the Charter.

55Accordingly, I order the respondent to refrain from reciting the current Town Prayer at the opening of public council meetings.