Province needs to comply with Supreme Court ruling

EDITORIAL by Gregory Beatty

Following a unanimous Supreme Court decision in April that Saguenay city council’s practice of opening its meetings with a Christian prayer was unconstitutional, Saskatchewan Premier Brad Wall said our provincial assembly would continue to open its proceedings with a prayer.

The assembly has done so since Saskatchewan became a province in 1905. It’s even mandated in s. 13 of the official rules and procedures: “The Speaker shall read prayers every day… before any business is entered upon.”

When I quizzed University of Ottawa professor Carissima Mathen about the legality of Wall’s position, she said it would be “far from a slam dunk” to defend in court.

Curious to learn what the government’s rationale was, I contacted the justice ministry and asked for an interview.

I didn’t regard my request as frivolous. In its decision, the court, while dealing with a municipal council prayer, used very expansive language. Typical is the judgment’s opening sentence: “The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion.” As a corollary to this fundamental right, the court added, “the state must remain neutral in matters involving this freedom.”

When I spoke with Mathen, she argued that because of the greater powers they possess, provincial assemblies are even more integral to the state than municipal councils. The same applies to the federal Parliament, which has opened its sessions with a prayer since 1877.

After a two-week wait, I received an e-mail response from the ministry: “We can provide the following information: Justice has reviewed the ruling. The ruling will not affect provincial legislative assemblies. Any changes to routine proceedings and orders of the day of the Legislative Assembly of Saskatchewan would need to be made by the Assembly.”

In contrast to Wall’s defiance of the Saguenay ruling, Mayor Michael Fougere quickly announced that Regina city council would comply and end its practice of saying a prayer. The distinction that’s been drawn in media reports between municipal councils and provincial assemblies is that the latter, along with Parliament, are protected by parliamentary privilege.

Privilege is an important principle that assists provincial/federal assemblies, and individual MLAs/MPs, in carrying out the many difficult tasks of government. It includes such rights as freedom of speech, freedom from interference and intimidation, and the right to institute inquiries and call witnesses.

But parliamentary privilege is not absolute. In Canada (House of Commons) v Vaid (2005) the Supreme Court laid out this test: “The assembly or member seeking immunity under parliamentary privilege must show that the sphere of activity [is] closely and directly connected with the fulfillment… of their functions as a legislative and deliberative body.”

In the Saguenay case, in response to an equivalency argument made by the council, the court said it was “possible” Parliament’s prayer was protected by privilege. By extension, that could include legislative assembly prayers. But it didn’t rule on the matter. And “possible” is hardly a ringing endorsement.

Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (1844) describes privilege as being governed by the doctrine of necessity. So immunity attaches only to those rights that are “absolutely necessary” for the execution of parliamentary powers.

Is it the government’s position that an opening prayer in the assembly meets that test? Indeed, that it’s so indispensable that it justifies the violation of our constitutional rights as laid out by the Supreme Court?

Politics plays a big role in this, of course. One of the Saskatchewan Party’s pillars is right-leaning Christians. Wall even took to Facebook to tout his position, and received dozens of positive comments.

Hopefully when a human rights complaint is launched the government won’t spend precious dollars defending prayer in the assembly. This isn’t even a Bill 5 situation where the government spent millions defending indefensible essential services legislation. The Supreme Court has ruled on this matter. Case closed!

And if it’s any comfort to the government, nixing the prayer meshes perfectly with the “New Saskatchewan” it’s always blathering on about. You know, the one with a growing First Nations population and multi-faith immigrant community — not to mention the ever-increasing number of Canadians who subscribe to no faith at all (estimated at one-quarter, at present).

It doesn’t get any more “Old Saskatchewan” than clinging to an archaic practice that dates back to 1905. So which is it Mr. Premier? Old or New?