Despite rising concerns over unrepresented litigants, one of them, Penetanguishene, Ont., resident Henry Freitag, scored a victory after leading his own case against his local council’s recitation of a non-denominational prayer.
On
May 23, the Human Rights Tribunal of Ontario ordered the Corporation of the Town of Penetanguishene to stop reciting the prayer at the beginning of council meetings. Freitag, a Holocaust survivor who identifies as a non-Christian, argues the practice discriminates against him even though the council doesn’t oblige people to rise and participate in it. In fact, it stopped reciting the Lord’s Prayer several years back after Freitag launched a challenge based on the Charter of Rights and Freedoms that went all the way to the Ontario Court of Appeal in 1999. The town introduced the non-denominational version instead.
Freitag argues even the new prayer is troubling because his decision to remain seated exposes him as a non-believer to others in the council chambers and leaves him excluded and feeling like an outcast. But interestingly, other cases that have dealt with non-denominational prayers similar to the Penetanguishene one have found they didn’t violate s. 2(a) of the Charter. As HRTO vice chairwoman Leslie Reaume noted, the Superior Court based such a finding in
Allen v. Renfrew (Corp. of the County) on the fact that the Charter itself refers to the supremacy of God. Moreover, the court noted the “broadly inclusive” nature of the prayer at issue in
Allen. In fact, the prayer in that case was similar to one used in the House of Commons.
But ultimately, Reaume noted a key difference in the cases: The current one involves a challenge under the Human Rights Code while the previous matters involved the Charter. “No such reference exists in the code,” she wrote in reference to the supremacy of God indicated in the Charter.
In a thoughtful analysis, Reaume found that despite its non-denominational character, “it would be reasonable to conclude that the current town prayer is derived at least in part from Judeo-Christian values.” So Freitag, who’s been fighting this issue for years, has won once again.
It wasn’t an obvious decision to come to given the previous court findings and the competing rights at issue. But ultimately, Reaume noted that while some council members might have strong religious leanings, it’s not necessary to accommodate their personal beliefs while acting in their roles as public officials. That’s reasonable, especially given the alternatives such as a moment of silence that could accommodate both believers and non-believers.
So good for Freitag for remaining steadfast. As other HRTO cases show, he’s somewhat of a legal provocateur who has launched multiple complaints with varying success (see the applications dismissed on April 4 in
Freitag v. Penetanguishene (Town)). But in this matter, he succeeded in making his point on his own.
—
Glenn Kauth
