Law in Quebec

In the wake of a terrorist attack that killed six at a mosque in Québec City, the “sad event underlines the importance of inclusivity in our society as does the judgment,” remarked Mario St-Pierre, a Montreal lawyer who successfully plead the case in Ville de Montréal c. Centre islamique Badr 2017 QCCS 57.

The Islamic cultural centre, in operation in the Montreal borough of Saint-Léonard since 1999, rented new quarters, with an option to purchase, in September 2004 to be able to accommodate its growing membership. A week later, the centre applied to municipal authorities for a certificate of authorization to use the edifice as a “religious centre,” something that was permitted under zoning laws at the time. In fact, before the Badr Islamic centre moved in, the building housed a funeral home with a chapel that provided religious services. On December 2004, the centre decided to purchase the building.

In 2008, the borough finally approved the certificate of authorization sought by the centre. But because the borough received complaints from local business over too much traffic during prayer time and lack of parking, municipal officials unilaterally changed the centre’s application after the fact to add that it could not host religious ceremonies. Municipal officials also introduced a new zoning by-law that would restrict new places of worship to the borough’s industrial sector.

Judge Lalonde chastised the city on several fronts, beginning with the fact that the city was “grossly negligent” for taking nearly four years to respond to the application for an authorization certificate and for singly changing the application. He also noted that the centre promptly did all it could to respond to complaints of increased traffic and limited parking space by trying to seek for new premises in the borough, without success. “The Court is of the opinion that the centre has acted in good faith and diligently by looking for a new solution to the problems voiced by its neighbours and the borough,” said Judge Lalonde in a 15-page ruling.

But more importantly, Judge Lalonde found that the centre had an acquired right to use the edifice as a place where it could host religious ceremonies. The city argued that since the Badr Islamic centre held religious activities like prayers, it was a place of worship that should be subject to the new zoning by-law that restricts new places of worship to the borough’s industrial sector. But Judge Lalonde found that just because a religious organization hosts religious ceremonies and prayers, it is “not necessarily a place of worship.” Since the Badr centre carries out community activities, and religious activities comprise of only 30-to-40 per cent of its activities, it was therefore a community centre and not a place of worship, concluded Judge Lalonde. Further, Judge Lalonde pointed out that when the building housed a funeral home it hosted religious ceremonies once or twice a week — and the city never voiced complaints about traffic or parking.

“The judge in this case applied the principle of acquired rights,” noted Sébastien Dorion, a Montreal municipal lawyer with Dunton Rainville. “The centre may have infringed the new zoning by-law but because it’s land use was legal in the past, it acquired the right to continue to do so. This case applies to centres that host religious ceremonies or places of worship but it can be applied to any type of land use. The only type of land use that can be changed and changed rapidly is when it principally deals with environmental or public security matters.”

Besides finding that the zoning change violated the centre’s acquired rights, Judge Lalonde held that by restricting religious activities to industrial sectors, it infringed on constitutionally guaranteed religious freedoms and article 3 of the Quebec Charter of Human Rights and Freedoms of members of the Badr centre. The new zoning by-law “harms and infringes more than just negligibly the capacity of members of the Badr centre to conform to their religious beliefs,” said Judge Lalonde.

“Charter rights have been found to be individual in just about all cases,” explained Julius Grey, a noted Montreal human rights lawyer. “It’s not a collective thing. However with respect to freedom of religion the Supreme Court of Canada said that one of the aspects of the individual right to freedom of religion is the right to do it together with other co-religioners.”

Grey has a number of cases involving religious organizations that are “having trouble” building mosques or orthodox synagogues. In one case involving the City of Mascouche, the Essalam Community Centre won a temporary reprieve in July 2105 pending a final decision when Quebec Superior Court Justice Brian Riordan held that the centre could continue to operate and that individuals could continue to pray within the confines of the centre.

“It’s clear that there is pressure being put by municipalities on these types of religious institutions, said Grey. “I’m going to be using the Badr decision in every one of my cases.”

But Louis-Philippe Lampron, a law professor at the Université Laval, found the judge’s reasons wanting. In Lampron’s opinion, Judge Lalonde does not really explain why the zoning by-law infringed the Charter. “It’s one thing to say that a zoning by-law infringed the Charter but it’s another thing to demonstrate whether the infringement was justified or not,” said Lampron. “Missing from his analysis is whether the violation was justified.”

Interestingly, St-Pierre never plead that the City treated his clients in a discriminatory fashion because they were Muslim. “There was no evidence that they were treated that way because they were Muslim,” said St-Pierre. “But as a taxpayer, as an owner of a building who applies for a permit, the city has an obligation to be diligent and communicate rapidly with the owner if they have concerns over the land usage.“