The Arbiters of Faith: Legislative Assembly of BC Entanglement with Religious Dogma Resulting from Legislative Prayer
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Bushfield, I and Phelps Bondaroff, TN. 2020. The Arbiters of Faith:
Legislative Assembly of BC Entanglement with Religious Dogma
Resulting from Legislative Prayer. Secularism and Nonreligion, 9: 8,
pp. 1–16. DOI: https://doi.org/10.5334/snr.140
RESEARCH ARTICLE
The Arbiters of Faith: Legislative Assembly of BC
Entanglement with Religious Dogma Resulting from
Legislative Prayer
Ian Bushfield and Teale N. Phelps Bondaroff
Daily sittings of the Legislative Assembly of British Columbia (BC), Canada begin with a prayer or reflec-
tion delivered by a Member of the Legislative Assembly (MLA). MLAs have the option of using a sample
prayer from a list of five provided by Legislative staff, or of delivering a prayer of their own devising.
The Office of the Clerk is currently revising the list of sample prayers to include a greater diversity of
beliefs. To accomplish this task, bureaucrats face a number of practical and constitutional challenges. This
article explores these challenges. The Office of the Clerk will have to first identify religious and belief
groups that are present in BC, then select a reasonable number of those groups to include on the list, and
finally identify prayers and reflections that are representative of those traditions. Each of these steps
raises practical questions with respect to how bureaucrats can actually make these decisions, and to more
fundamental questions regarding the appropriateness of the decisions made. Given these challenges, this
paper concludes that the practice of offering sample prayers should be avoided, and that MLAs should be
called upon to deliver prayers and reflections of their own devising, or that legislative prayer be abolished.
Introduction This review is timely, as legislative prayer is fraught with
Daily sittings of the Legislative Assembly of British problems: it trivializes a potentially sacred and private act;1
Columbia (BC) begin with a prayer or reflection deliv- has a tendency to promote religions (and denominations
ered by a Member of the Legislative Assembly (MLA). within those religions) at the exclusion of others (Marshall
MLAs have the option of using a sample prayer from a 2002); is inherently exclusory to those from faith tradi-
list of five provided by legislative staff, or of delivering a tions which may not include practices that could be con-
prayer of their own devising. Sittings began with ‘prayers’ sidered as ‘prayer’ or for whom the limitations presented by
until November 2019 when the Standing Orders were the legislature (location, time, duration, etc.) would make
amended to ‘prayers and reflections’ (Legislative Assem- prayer in this context impossible; excludes non-believers;
bly of BC 2019). This change is part of an ongoing process and seemingly represents a violation of the state’s duty of
of reform, led by the Office of the Clerk. In addition to religious neutrality (Phelps Bondaroff et al. 2019: 17–38;
this nominal change, the Office of the Clerk is currently Delahunty 2007; Mouvement laïque québécois v. Saguenay
reviewing the list of sample prayers “to ensure that pre- 2015). While the practice of starting sittings with prayers
pared prayers provide a breadth of non-religious reflec- is exclusionary and potentially unconstitutional, the pro-
tions, as well as prayers from major religious groups” cess involved in revising and amending the provided sam-
(K. Ryan-Lloyd, 2019, Acting Clerk of the House, corre- ple prayers is equally problematic.
spondence with authors, August 21). Part of this review The review of the sample prayers is ongoing. To accom-
involves the Office of the Clerk reaching out to various plish this task, bureaucrats in the Office of the Clerk face
faith groups in BC to solicit their feedback on the sample a number of challenges, both practical and constitutional.
prayers (K. Ryan-Lloyd, 2020, Clerk of the House, corre- They will have to first identify religious and belief groups
spondence with authors, March 10). Notably, the Office that are present in BC, then select a reasonable number
of the Clerk included nonreligious organizations in this of those groups to include on the list, and finally, identify
consultation; such groups are very often excluded from prayers and reflections that are representative of those tra-
these types of consultation (see for example Beaman, ditions. Each of these steps raises practical questions with
Steele & Pringnitz 2018: 52, referencing Fox v. Secretary respect to how bureaucrats can actually make these deci-
of State for Education). sions, as well as to more fundamental questions regard-
ing the appropriateness of the decisions being made. This
article explores these difficulties.
BC Humanist Association, CA Given the exclusory nature and challenges surround-
Corresponding author: Teale N. Phelps Bondaroff (tealepb@gmail.com) ing legislative prayer, this practice should ultimately beArt. 8, page 2 of 16 Bushfield and Phelps Bondaroff: The Arbiters of Faith
abolished. However, presuming that ‘prayers and reflec- unlike other jurisdictions, Prayers and Reflections
tions’ will continue to open sittings of the BC Legislature are held with both officers and strangers present
for the foreseeable future, this study explores some of and are the only proceedings not transcribed ver-
the challenges that the Office of the Clerk will likely face batim for publication in the Hansard transcript.
as it attempts to develop a list of ‘sample prayers’ to pro- Usually the Speaker will invite a Member to “lead
vide to BC legislators. In so doing, we offer an in-depth the House in prayer or reflection,” the Member
case study that will contribute to the broader discussion having been previously designated by their Caucus
around separation of religion and government in BC and Whip.
Canada.
This paper outlines the current practices surrounding When delivering prayers, MLAs are given the option of
legislative prayer in BC. It then examines existing juris- delivering a prayer or reflection of their own devising,
prudence relating to issues surrounding separation of or of reading one of five sample prayers (see Appendix
religion and government to identify some of the possible 1). These prayers “may be of any faith or denomination,
constitutional and legal challenges that the Office of the may be reflective of different cultural traditions, may be
Clerk may face as it considers expanding the list of sam- a traditional land acknowledgement, and may also be a
ple prayers on offer. The various approaches that could moment of reflection” (Ibid.).
be adopted by the Office of the Clerk to amend the list The recent House of Prayers report, which analyzed the
of sample prayers, and the myriad of practical challenges content and religiosity of these prayers between 2003
associated with these approaches, are then explored. The and 2019, found that MLAs chose to deliver a prayer from
paper concludes that given these challenges, the practice the sample prayer list precisely half of the time (50.0%)
of offering sample prayers should be avoided, and that (Phelps Bondaroff et al. 2019: 73). This report also found
MLAs should be called upon to deliver prayers and reflec- that MLAs have tended to prefer some of the sample
tions of their own devising, or that legislative prayer be prayers over others, and that MLAs will occasionally make
abolished. minor alterations to the prayers, or deliver sample prayers
in a number of combinations (Table 1).
Current legislative practice in BC Apart from the five sample prayers and combinations
The daily routine business of the BC Legislature is estab- thereof, the content of the prayers devised and delivered
lished by Standing Order 25, which details that morning by MLAs varied considerably; they included religious invo-
and afternoon sittings will begin with ‘prayers and reflec- cations, acknowledgments of tragedies and natural dis-
tions’ as the “the first item of business after the arrival asters and those impacted by them (see prayer delivered
of the Speaker’s Procession in the Chamber” (Legislative by R. Visser, 2005, March 2), and well-wishes to members
Assembly of BC, Standing Order 25; Ryan-Lloyd et al. experiencing hardships. The House of Prayers report iden-
2020: 97). Prayers and reflections are delivered by either tified prayers where MLAs proselytized (see prayer deliv-
an MLA, or “by the Speaker or invited faith leaders or ered by V. Roddick, 2008, February 25), recited poetry
Indigenous leaders or Elders,” the latter of which typically (see prayer delivered by L. Popham, 2009, September 21),
occurs on days when a Speech from the Throne is read praised government policy (see prayer delivered by N.
(Ryan-Lloyd et al. 2020: 97). Parliamentary practice in Brit- Letnick, 2011, October 19), extolled principles of democ-
ish Columbia (Ibid.) notes that: racy (see prayer delivered by D. Routley, 2014, February
Table 1: Sample prayer use in BC Legislature by MLAs (Phelps Bondaroff et al. 2019: 49).
Sample Prayer Coded2 Total Number Percentage of Total Percentage of Sample
Prayers (N = 866) Prayers (N = 434)
1 Non-sectarian 26 3.0% 6.0%
2 Non-sectarian 120 13.8% 27.7%
3 Secular 75 8.7% 17.3%
4 Secular 121 14.0% 27.9%
5 Non-sectarian 51 5.8% 11.8%
2+3 N/A 1 0.1% 0.2%
3+4+5 N/A 2 0.2% 0.4%
3+5 N/A 3 0.4% 0.7%
4+3 N/A 1 0.1% 0.2%
4+5 N/A 34 3.9% 7.8%
Total 434 50% 100%
Note: The original table and report used the term ‘standard prayer’ in lieu of ‘sample prayer’.Bushfield and Phelps Bondaroff: The Arbiters of Faith Art. 8, page 3 of 16
19), and even took partisan swipes at unions (see prayer Arbitrating what constitutes a religion
delivered by K. Krueger, 2004, April 29). Before soliciting prayers and reflections for inclusion in a
A cursory examination of the current list of sample revised list, the Office of the Clerk must first decide what
prayers clearly underscores the need for amendment or constitutes a religion. Simply approaching certain organi-
abolition. All of the current sample prayers have a struc- zations or individuals at the exclusion of others exposes
ture typical of Abrahamic faith traditions, and all end a judgement call on the part of the Office of the Clerk,
in ‘amen.’ While the House of Prayer report coded two regardless of the existence of explicit rules, procedures,
of these prayers as ‘secular’ given their absence of overt or definitions relating to what constitutes a religion. By
religious language other than ‘amen’ (see prayers 3 and 4 making such a choice, the Office of the Clerk is effectively
in Appendix 1), the other three sample prayers (1, 2, and validating or elevating some groups or individuals and
5) are overtly religious and were coded as ‘non-sectarian’ invalidating others, or as Sullivan describes it, “creating a
(Phelps Bondaroff et al. 2019: 48). These three prayers hierarchy of orthodoxies” (2005: 3; and see Beaman 2010:
contain overt references to a deity, requests for divine 267).
guidance, and are replete with religious language (Ibid.). Naturally then, the first and most important question to
While all five of the prayers can reasonably be seen as ecu- consider is whether the government should have a role in
menical, their structure and content essentially excludes determining what is recognized as a religion. If the state
the religious practices of non-Abrahamic religions and lacks the authority to adjudicate this question, then the
non-believers. question as to how it might go about accomplishing this
That this list could be considered ‘secular’ betrays what becomes moot. In many countries, there is a “government
Beaman (2010: 280) refers to as the “tainted neutral- office that is in charge of deciding what qualifies as reli-
ity of the secular,” whereby ‘secular’ is simply “another gion, for legal purposes” and religion must be “organized
name for a vague Christianity” (Ibid. quoting Jakobsen and officially licensed in order to function” (Sullivan 2009:
& Pellegrini 2004: 114). In these prayers we can see “the 1185). This is not the case in Canada.
ancestral ghost of majoritarian religion continue to haunt Canadian jurisprudence has consistently found that it is
present-day iterations of the boundaries of religious free- inappropriate for the state to adjudicate what constitutes
dom” (Beaman 2020). In an increasingly multicultural a religion (Ogilvie 2015). This conclusion is unsurprising
society, which includes a plethora of faith traditions and a given the fact that defining ‘religion’ continues to be a sub-
growing number of non-believers, this limited list of five ject of intense debate in academia, where there are com-
Abrahamic-style prayers is indeed a very narrow sample. peting sociological and phenomenological approaches
This is ultimately an exclusionary practice, which (see Siding Jensen 2019; Beaman 2010; Spiro 2004;
entrenches a specific and narrow understanding of an Beaman 2003; Platvoet & Molendijk 1999; Sullivan 1998;
acceptable “vision and version of a history that belongs Plavoet 1990; and Freeman 1982–1983). In addition, many
only to a particular segment of society, which is in turn of these approaches are derived from historically Judeo-
located at the apex of a hierarchy of citizenship and Christian understandings, which have not always been
belonging” (Beaman 2020). As Beaman (2020) notes, this able to accommodate spiritual beliefs of non-European
has an obvious impact: cultures (Oman 2013; Southwold 1978). For example, in a
legal dispute over whether a smudging ceremony in a Port
certain groups, particularly religious minorities Alberni, BC, school violated the school’s requirement to
and the nonreligious, are excluded from the nar- operate on “strictly secular and non-sectarian principles”,
rative of ‘we’ in the public sphere, and as contribu- the Nuu-chah-nulth Tribal Council argued that “smudg-
tors to nations in the present tense, the past, and ing is a cultural practice, not a religious one” (Servatius
potentially the future. What is worth preserving v. Alberni School District 2020: para9). Ultimately, the
and protecting does not belong to them and does question remains alive as the Supreme Court of British
not originate with them. Columbia decided this case on other grounds.
Similar examples can be found in the United States
What we see in the current practice of beginning sittings of America (USA). In Lyng v. Northwest Indian Cemetery
of the BC Legislature with prayer is an unspoken under- Protective Association (1988) the US Supreme Court
standing of what constitutes religion, and when this “allowed ‘development’ to continue at the expense of
understanding is examined, it is revealed to be highly the desecration of sacred spaces and the destruction of
exclusionary. As US Supreme Court Justice Ginsberg noted Native-American spirituality” (Beaman 2003: 319). If the
in her dissent in American Legion v. American Humanist road construction project in Lyng had been proposed
Association, those not included on the list are treated as through a church building or cathedral it is plausible
“outsiders, not full members of the political community” that the verdict would have been different or that the
(Ginsberg quoting County of Allegheny in American Legion case would not have been necessary at all. Another semi-
v. American Humanist Association 2019). Here, in a simi- nal example from the USA can be found in Employment
lar vein to Beaman, the goal is not to “turn Christianity Division v Smith (1990). In this case, the Supreme Court
into the villain of the story, but rather to ask how existing ruled that the First Amendment’s clause concerning the
power relations constitute an impediment to social inclu- free exercise of religion, “does not protect individuals from
sion, living well together, and equality” (2020). neutral laws that incidentally inhibit, or even preclude,Art. 8, page 4 of 16 Bushfield and Phelps Bondaroff: The Arbiters of Faith
the practice of their religion” (Marin 1990–1991: 1431). I agree with the appellant that the requirement
And as a result, the Court “refused to exempt the Native that the belief system have faith in a higher
American respondents, dismissed from their jobs for par- Supreme Being or entity and reverence of said
ticipating in a religious ritual involving the ingestion of Supreme Being is not always required when con-
peyote, from Oregon’s law prohibiting peyote use” (Ibid. sidering the meaning of ‘religion’. The appellant
1432; see also Sullivan 2009: 1188). rightfully pointed to Buddhism as being a recog-
Such cases touch upon attempts to differentiate nized religion that does not believe in a Supreme
between religious and spiritual practices, and incline one Being or any entity at all (citing South Place Ethical
towards Sullivan’s (2014: 1132–1133) conclusion that Society, Barralet and Others v. AG., 1980, 1 W.L.R.
1565, at p.1573).
we do not know how to define religion, and the
available evidence suggests that we should prob- In other words, the Court disagreed with the CRA’s policy.
ably stop trying. Not because those practices Justice Rivoalen (Church of Atheism of Central Canada v.
that are gathered under the term religion are not Canada 2019: para.10), also noted that:
important but because the religiousness or not of
a particular activity cannot be determined with suf- For something to be a ‘religion’ in the charitable
ficient specificity and therefore should not matter sense under the Act, either the Courts must have
in law. We will have to find our collective reassur- recognized it as such in the past, or it must have
ance elsewhere. the same fundamental characteristics as those rec-
ognized religions. These fundamental characteris-
The semantic debate over religion is far from settled. Time tics are not set out in a clear ‘test.’
and again, bureaucrats may voluntarily, or be mandated
to, weigh in on this debate in their official capacity. While Justice Rivoalen then proceeded to outline some of these
there are a number of examples of this, here we will con- characteristics, which included that “the followers have a
sider two: The determination of charitable status and rec- faith in a higher power such as God, entity, or Supreme
ognition to solemnize marriages. Being; that followers worship this higher power; and that
An organization may qualify for charitable status if the religion consists of a particular and comprehensive
it has as a purpose the ‘advancement of religion.’ The system of faith and worship” (Ibid. citing Syndicat North-
Canada Revenue Agency (CRA) therefore maintains a sum- crest v. Amselem, 2004 SCC 47, 2 S.C.R. 551, at para.39).
mary policy on religion to aid bureaucrats making a deter- We can see the “ancestral ghost of majoritarian religion”
mination regarding the status of an applicant. The policy lurking in Justice Rivoalen’s characteristics of a religion
stipulates that: (Beaman 2020). Here, “Protestantism, and to some extent
Catholicism, are constructed as the normal against which
to advance religion in the charitable sense means the ‘other’ is established” and from which the characteris-
to promote the spiritual teachings of a religious tics of a religion are determined (Beaman 2003: 313). Such
body and to maintain doctrines and spiritual is the hegemony of these religions that they are used to
observances on which those teachings are based. establish what constitutes a ‘normal’ religion and to form
There must be an element of theistic worship, the basis of a definition of religion itself (Beaman 2003:
which means the worship of a deity or deities in 214).
the spiritual sense (CRA 2002). In other contexts, the laws governing marriages in
BC, Ontario, and Quebec give bureaucrats the power to
While this definition attempts to be as inclusive as pos- grant authority to religious representatives to solemnize
sible, it clearly excludes a number of religious traditions, marriages (BCHA 2017). Notably though, each of these
most notably those that are non-theistic. Unlike theistic acts does not define ‘religion’ explicitly. For example,
religions that “presuppose that ultimate reality is a per- the Marriage Act of BC defines a ‘religious body’ as “any
sonal God (as in monotheism)… other traditions presup- church, or any religious denomination, sect, congregation
pose that ultimate reality is impersonal” (Delahunty 2007: or society” (Marriage Act 1996). Such a definition is circu-
541; and see GR. Stone cited in Ibid., p. 540–541). These lar and not useful when attempting to effectively define
non-theistic traditions tend to include concepts of “an all- what constitutes a religion.
pervasive energy or force that may or may not include the It is again telling the definition would begin with the
individual” (Berry 2005: 636; and see Koenig et al. 2014: word ‘church’ and then append other examples. The use
530). of this term also potentially muddies the definition, as it
The contentious nature of this definition was reflected can have different meanings to different Christian sects.
in a recent Canadian Federal Court of Appeal ruling where As Sullivan (2014: 1130) notes, “there is arguably no
the court rejected the claim that the Church of Atheism of analogy to the church outside Christianity,” and within
Central Canada constituted a religion. The ruling did note Christianity there is considerable debate as to whether
deficiencies in current efforts to define religion in the con- this refers to a group of two or three believers gathered
text of what constitutes a charity. In her decision, Justice in Jesus Christ’s name, or a hierarchical structure, or even
Rivoalen (Church of Atheism of Central Canada v. Canada a building (Ibid. 1127; and see inter alia Hebart 2009;
2019: para.21), stated that: Dulles 2002). While this is not the place for a detailedBushfield and Phelps Bondaroff: The Arbiters of Faith Art. 8, page 5 of 16
exploration of ecclesiology, suffice it to say the use of this huts on the balconies of their units, in violation of their
term without additional elaboration makes it ill-suited to building’s bylaws, to fulfill what they claimed was a
serve as a benchmark. religious requirement. Writing for the majority, Justice
As the branch responsible for overseeing the registra- Iacobucci (Syndicat Northcrest v. Amselem 2004: para.50)
tion of religious representatives in BC, the Vital Statistics noted that:
Agency maintains a policy that any organization seeking
recognition “must demonstrate that it is sufficiently well the State is in no position to be, nor should it
established as to continuity of existence and as to recog- become, the arbiter of religious dogma. Accord-
nized rites and usages respecting the solemnization of ingly, courts should avoid judicially interpreting
marriage to warrant the registration of its religious rep- and thus determining, either explicitly or implic-
resentatives” (Vital Statistic Agency 2016). Organizations itly, the content of a subjective understanding of
demonstrate this by submitting “documentary proof of religious requirement, ‘obligation’, precept, ‘com-
existence in British Columbia or existence and recognition mandment’, custom or ritual. Secular judicial deter-
in another province, for a minimum period of five years minations of theological or religious disputes, or of
demonstrating such factors as stability, growth, and con- contentious matters of religious doctrine, unjusti-
tinuing viability” (Ibid.). This five-year requirement exists fiably entangle the court in the affairs of religion.
in spite of the Supreme Court of Canada ruling that “[t]he
Charter protects all sincere religious beliefs and practices, Again, religion is viewed by the Court as an inherently
old or new” (Ktunaxa Nation v. British Columbia 2017: subjective and therefore personal thing. Developing the
para.69; and see also Sullivan 2009: 1185). Again, we can definition, Justice Iacobucci (Ibid., para.39) elaborated,
see a strong bias in favour of a specific kind of religious noting that:
structure.
Given the paucity of legislative definitions of religion, we In order to define religious freedom, we must first
must instead look to existing jurisprudence to offer some ask ourselves what we mean by ‘religion’. While
insight. One of the first cases that explored the meaning it is perhaps not possible to define religion pre-
of ‘freedom of religion’ as enshrined in the Charter of cisely, some outer definition is useful since only
Rights and Freedoms was a 1985 Supreme Court of Canada beliefs, convictions and practices rooted in reli-
case that considered whether the Lord’s Day Act, which gion, as opposed to those that are secular, socially
prohibited the sale of goods on a Sunday, infringed on based or conscientiously held, are protected by the
the religious freedoms of those wishing to do business on guarantee of freedom of religion. Defined broadly,
this day, in this case a drug store in Calgary. Finding the religion typically involves a particular and compre-
purpose of the Act to amount to religious compulsion and hensive system of faith and worship. Religion also
therefore be unconstitutional, Justice Dickson (R. v. Big M tends to involve the belief in a divine, superhuman
Drug Mart Ltd.1985: para.135) wrote for the majority: or controlling power. In essence, religion is about
freely and deeply held personal convictions or
In an earlier time, when people believed in the beliefs connected to an individual’s spiritual faith
collective responsibility of the community toward and integrally linked to one’s self-definition and
some deity, the enforcement of religious conform- spiritual fulfilment, the practices of which allow
ity may have been a legitimate object of govern- individuals to foster a connection with the divine
ment, but since the Charter, it is no longer legiti- or with the subject or object of that spiritual faith.
mate. With the Charter, it has become the right of
every Canadian to work out for himself or herself While this statement defines religion in narrower param-
what his or her religious obligations, if any, should eters than leaving it to up to “every Canadian to work out,”
be and it is not for the state to dictate otherwise. (R. v. Big M Drug Mart Ltd. 1985: para.135) it still connects
religion with the personal experience. It also leaves a con-
In other words, the court specifically eschewed any role siderable degree of flexibility, noting that religion ‘typi-
for government in deciding the validity of claimed reli- cally’ and ‘tends to’ display certain characteristics without
gious beliefs. The Court found that the Act had as its pur- establishing anything definitive. Even with those charac-
pose “the compulsion of sabbatical observance” and, as a teristics, words like ‘faith’, ‘worship’ and ‘spiritual’ create
result, it violated the Charter’s protection of freedom of further room for semantic disputes.
religion (Ibid., para.85). The language of the ruling is ada- The challenge for bureaucrats tasked with vetting appli-
mant, noting that “the diversity of belief and nonbelief, cants for a religious benefit (whether these include receiv-
the diverse sociocultural backgrounds of Canadians make ing tax benefits or inclusion in a list of approved sample
it constitutionally incompetent for the federal Parliament prayers) is that Justice Iacobucci was clear that Courts, and
to provide legislative preference for any one religion at by extension agents of the state, are not to be ‘the arbiter
the expense of those of another religious persuasion” of religious dogma’; however, any vetting process inher-
(Ibid., para.134). ently demands some criteria upon which to judge an appli-
This view was expanded upon by the Court in Syndicat cation. These bureaucrats are often therefore placed in the
Northcrest v. Amselem in 2004. In this case, several unenviable position of determining if something is reli-
Orthodox Jews in Montreal sought to construct temporary gious without making any judgement about the religionArt. 8, page 6 of 16 Bushfield and Phelps Bondaroff: The Arbiters of Faith
itself. But how can one determine whether something is or Applying this to the facts of the case, Justice Deschamps
is not religious without making a judgement concerning concluded that while the parents “sincerely believe that
its content? For example, the Church of Atheism was found they have an obligation to pass on the precepts of the
not to be a religious organization based on the Minister’s Catholic religion to their children”, their ability to observe
review of the content of the materials the Church sub- that practice was not being interfered with (Ibid., para.26).
mitted describing its belief system (Church of Atheism of Rather than effectively define what constitutes a religion,
Central Canada v. Canada 2019: para.23). therefore, the Courts have sought to establish the sincer-
Justice Iacobucci attempted to address this appar- ity of religious beliefs.
ent paradox with respect to freedom of religion claims. Of course, the job of interpreting what constitutes ‘sin-
He noted that “while a court is not qualified to rule on cerity’ and evaluating this is no small task. Evaluating
the validity or veracity of any given religious practice or the sincerity of someone’s beliefs is incredibly challeng-
belief, or to choose among various interpretations of ing, particularly given the limitations imposed by the
belief, it is qualified to inquire into the sincerity of a claim- Amselem Test. As Charney (2010: 48) elaborates, because
ant’s belief, where sincerity is in fact at issue” (Syndicat “the Supreme Court of Canada held that religious beliefs
Northcrest v. Amselem 2004: para.51). He then provided are personal and so cannot be subject to an objective
the following test: evaluation,” one cannot rely on factors such as consist-
ent practice and expert opinion to evaluate the sincerity
at the first stage of a religious freedom analysis, of an individual’s beliefs (Ibid., 55). For example, because
an individual advancing an issue premised upon beliefs change over time (Syndicat Northcrest v. Amselem
a freedom of religion claim must show the court 2004: para.53 and 54), one cannot rely on an individual’s
that (1) he or she has a practice or belief, having actions in the past to serve as an indication as to the sin-
a nexus with religion, which calls for a particular cerity of their beliefs at the moment (Charney 2020: 59).
line of conduct, either by being objectively or sub- As Beaman (2010: 277) elaborates, “courts have struggled
jectively obligatory or customary, or by, in general, to reconcile the rather static notion of religion with the
subjectively engendering a personal connection dynamic ways in which people live out or practice religion
with the divine or with the subject or object of an on a day to day basis. Like law, religion on paper and reli-
individual’s spiritual faith, irrespective of whether gion as lived are often two very different phenomena.” Or
a particular practice or belief is required by official to put it another way, the fact that someone enjoyed a
religious dogma or is in conformity with the posi- ham sandwich last year has no impact of the sincerity of
tion of religious officials; and (2) he or she is sin- their belief in the need to keep Kosher today. Ultimately,
cere in his or her belief. Only then will freedom of as Charney notes, “the state does not have a ‘window into
religion be triggered (Ibid., para.56). men’s souls’” (2010: 56, citing Queen Elizabeth I), and
must instead wait until that belief manifests itself in some
This has become known as the ‘Amselem Test’ and was external way – when it becomes embodied, practiced, and
expanded upon in S.L. v. Commission scolaire des Chênes. public (Beaman 2010: 278).
In this case, Catholic parents argued that a mandatory In exploring the extent to which prison regulations
ethics and religion class in Quebec schools violated their substantially burdened a prisoner’s exercise of religion,
freedom to raise their children according to their own reli- Sullivan (1998) explored two different models of what
gious beliefs. Writing for the majority, Justice Deshamps constitutes religion and how one would test if the exer-
(S.L. v. Commission scolaire des Chênes 2012: para.24) cise thereof were substantially burdened. The first view
elaborated on the aspects of the test for sincerity of belief, considers religion as “doctrinally definite and authorita-
explaining that: tively determined by an institutional church,” and as such,
“being religious – exercising religion – is being obedient
It follows that when considering an infringement to the legal prescriptions of that religion” (p.446). Under
of freedom of religion, the question is not whether this formulation, a court would use expert testimony to
the person sincerely believes that a religious prac- identify “the mandates of a particular religion… to estab-
tice or belief has been infringed, but whether a lish the requirements of that religion with respect to a par-
religious practice or belief exists that has been ticular practice,” and a religious practitioner would only
infringed. The subjective part of the analysis is need to “testify convincingly to membership in a religious
limited to establishing that there is a sincere belief community” (Ibid.). The second view sees religion “as per-
that has a nexus with religion, including the belief sonally determined – a matter of individual choice. Being
in an obligation to conform to a religious practice. religious – exercising religion – is about being faithful to
As with any other right or freedom protected by one’s own religious understanding” (Ibid.). Under this for-
the Canadian Charter and the Quebec Charter, mulation, “the appropriate test should be a subjective one
proving the infringement requires an objective – whether the practices are central to, and sincerely and
analysis of the rules, events or acts that interfere religiously motivated in terms of, the individual’s religious
with the exercise of the freedom. To decide other- exercise” (Ibid.).
wise would allow persons to conclude themselves The aforementioned rulings provide some guidance for
that their rights had been infringed and thus to those bureaucrats tasked with evaluating the claims of
supplant the courts in this role. individuals and groups seeking recognition for a benefitBushfield and Phelps Bondaroff: The Arbiters of Faith Art. 8, page 7 of 16
awarded on the basis of religion, and seem to suggest the Anytime the Office of the Clerk decides to include a spe-
second of Sullivan’s two tests.3 Bureaucrats should query cific religious tradition on its list of ‘sample prayers’ at
the sincerity of belief by those who seek recognition on an the exclusion of another, it violates its duty of religious
individual case-by-case basis. As religion has been consid- neutrality. Any time it includes religious traditions at the
ered by the courts as a deeply personal issue, there is no exclusion of non-religious traditions, the Office of the
need to consider religious texts or other authorities. Clerk likewise violates this duty.
As we shall see, however, this approach contrasts with Beyond these constitutional quagmires, the staff in the
what is being undertaken in the Office of the Clerk’s pre- Office of the Clerk are faced with the very pragmatic ques-
sent review of the sample prayers. Here, the Office of the tion about how to go about selecting which religious tra-
Clerk aims to identify a manageable number of religious ditions to include. Here we will examine several possible
traditions from which to provide prayers. Rather than approaches, although, as we shall see, each is fraught with
treating religion as subjective and therefore evaluating uncertainty.
the sincerity of various beliefs, bureaucrats are instead
treating it as “doctrinally definite and authoritatively Relying on Bureaucratic Familiarity
determined by an institutional church” (Ibid.), and mak- The (then acting) Clerk informed the authors by email
ing determinations based on religious authorities and that her staff’s review of the sample prayers intended “to
legal prescriptions of those religions. The very first step ensure that prepared prayers provide a breadth of non-
necessary to select sample prayers for legislators – simply religious reflections, as well as prayers from major reli-
defining what constitutes a religion – finds itself on shaky gious groups” (K. Ryan-Lloyd, 2019, Acting Clerk of the
constitutional ground. House, correspondence with authors, August 21). In fur-
ther communications, the Clerk pointed to the inclusion
Which religions make the cut? of “representatives of faith communities” in the Govern-
Once the difficult constitutional hurdle of how to ment’s Table of Precedence, though did not specify that
determine what constitutes a religion has been cleared, this list was being used to inform the process (K. Ryan-
there remains the challenge of selecting which recog- Lloyd, 2020, Clerk of the House, correspondence with
nized religious traditions will be included on the list authors, March 10; and see Government of BC n.d.; Gov-
of sample prayers, and by extension, which will be ernment of Canada 2015). Taken together, this suggests
excluded. that the approach the Office of the Clerk is taking is effec-
Making this determination, however, risks violating tively to select the traditions most familiar to them and
the state’s duty of religious neutrality, as outlined in the to other branches of government. The problem with such
2015 Supreme Court of Canada ruling Mouvement laïque an approach should be immediately apparent, as it relies
québécois v Saguenay. This case examined the constitu- almost entirely on the biases and anecdotal familiarity of
tionality of starting municipal council meetings with a those within the bureaucracy.
prayer (Phelps Bondaroff et al. 2019: 16). The ruling found A public version of the province’s Table of Precedence is
that prayers at municipal council meetings violated the not currently available; however, the official federal Table
state’s duty of religious neutrality, with Justice Gascon of Precedence lists “Representatives of faith communities”
(Mouvement laïque québécois v. Saguenay 2015: para.72) after “Premiers of the Territories of Canada” and above
noting that: judges from a wide range of courts, senators, members of
parliament, and other high ranking officials (Government
the evolution of Canadian society has given rise of Canada 2015). This list, an amended version of which
to a concept of neutrality according to which the applies at provincial events, includes the following foot-
state must not interfere in religion and beliefs. The note with respect to representatives of faith communities:
state must instead remain neutral in this regard.
This neutrality requires that the state neither The religious dignitaries will be senior Canadian
favour nor hinder any particular belief, and the representatives of faith communities having a sig-
same holds true for non-belief. It requires that the nificant presence in a relevant jurisdiction. The
state abstain from taking any position and thus relative precedence of the representatives of faith
avoid adhering to a particular belief. communities is to be governed by the date of their
assumption in their present office, their represent-
Justice Gascon underscored that the state’s duty of reli- atives being given the same relative precedence
gious neutrality was a ‘democratic imperative’, stipulating (Ibid.).
that
In a conversation with a spokesperson from the Depart-
[t]he state may not act in such a way as to create a ment of Canadian Heritage, we were told there is no for-
preferential public space that favours certain reli- mal list of religious officials associated with the Table (M.
gious groups and is hostile to others. It follows that Belanger, 2020, Senior Ceremonial and Protocol Officer,
the state may not, by expressing its own religious Canada, conversation with authors, March 13). Rather the
preference, promote the participation of believ- Table instead serves as a guide for those hosting official
ers to the exclusion of non-believers or vice versa government events to identify the symbolic hierarchy of
(Ibid., para.75). those present. As these events are typically invite-only,Art. 8, page 8 of 16 Bushfield and Phelps Bondaroff: The Arbiters of Faith
organizers are aware of who among the attendees are instructs respondents to identify their religion “even if
religious representatives. However, the spokesperson did they are not currently a practicing member of that group”
not describe a robust procedure for ensuring that a diver- (Statistics Canada 2015: Question 22, Religion). As such,
sity of religious (and non-religious) traditions would be the precise rates of belief may not be accurately captured
represented. Organizers might well rely, for example, on by the census, as those who may have left their religious
a contact list held by the Chaplain General of the Cana- tradition and no longer ascribe to its tenets are told to
dian Armed Forces. Event organizers would also research report their (former) religious identity (Jukier & Woehrling
and vet individual representatives to exclude those not 2015: 156–157). This is not just a theoretical concern
deemed worthy of attending; the Church of the Flying as 75% of Quebecers identified as Catholic in the most
Spaghetti Monster was given as an example. recent Statistics Canada survey (Statistic Canada 2013),
Of course, none of this addresses the central issues but under 28% say they strongly believe in God, according
raised above. By relying on other parts of the bureaucracy, to a 2019 poll by Léger Marketing (Riga 2019). This clearly
the Office of the Clerk is merely abdicating responsibility suggests that a large number of Quebecers are ‘cultural
for making the judgement concerning what is and is not Catholics’ and simply identify as Catholic in the census,
a religion and allowing others to make this contentious while not ascribing to the most basic tenet of the religion,
call. It is clearly evident that with the approach taken by namely belief in God (The Vatican n.d.).
organizers of federal government events, these decisions Next, by relying on the categories used by Statistics
are often still ad hoc and subject to the same biases and Canada, the Office of the Clerk is continuing to use deci-
preconceptions. Even the list compiled by the Chaplain sions made by other government bureaucrats. This pre-
General will invariably be biased toward larger, hierarchal sents essentially the same problems as reliance upon the
religious traditions that have pastoral programs. Table of Precedence, as it presumes that Statistics Canada
Alternatively, the Office of the Clerk could connect knows what a religion is, and is able to successfully navi-
with those traditions that have been actively involved gate all the previously raised issues. This is not merely a
– or permitted to be involved – with larger multi-faith theoretical concern. In fact, several respondents to the
organizations, such as the Canadian Multifaith Federation agency’s consultation for Census 2021 cited data gaps in
(formerly the Ontario Multifaith Council) (n.d.), the Faith the list of religious identities provided for respondents
Alliance (Faith in Canada 150 n.d.), or the Multifaith Action in their feedback (Statistics Canada 2019). In response to
Society (n.d.). Among the deficiencies with this approach these comments, Statistics Canada has modified its list of
are that each of these organizations relies on groups that examples of religions for Census 2021 (Ibid.). This raises
represent individual faith traditions to apply for member- a further challenge for bureaucrats attempting to deter-
ship and they often do not include non-religious tradi- mine which religions to represent within a list of sample
tions. This risks privileging proselytizing traditions and prayers, in so far as the categories may change from cen-
ones that take a more proactive role in wider society. Some sus to census.
religious traditions, such as Jehovah’s Witnesses, actively Assuming the demographic data are accurate, bureau-
limit their interaction with those of other faiths and of crats will need to set a threshold that must be attained
no faith, and abstain from engaging in ‘politics’ (Jehovah’s in order for a religious or belief tradition to be allocated
Witnesses n.d.). a sample prayer, otherwise the list would quickly become
Ultimately, there does not appear to be any official unwieldy, as there were 99 religious identities listed in the
government list of religious traditions that can be used most recent census (Statistics Canada 2013). Ultimately,
to decide which should be included on the list of sample any threshold that the bureaucracy picks will be arbitrary.
prayers upon which the Office of the Clerk can draw. To A major problem with this approach is that the manner
withstand judicial scrutiny this process cannot be arbi- in which religious traditions and identities are sub-divided
trary, so another method must be adopted. in the census can make determinations as to the relative
size of those groups difficult. In his analysis of the 1973–
Population Demographics 1996 General Social Survey, for example, Sherkat found
Arguably, the next most intuitive way to identify the tra- that “almost half the ‘other’ category, which were previ-
ditions to be included would be to use census data in ously thought to be non-Judeo Christian faiths, [were]
order to identify the most common religious and belief actually misclassified Christians” (Sherkat 1999: 551 cited
traditions with which people in BC identify. Under this by Beaman 2003: 313).
approach, the Office of the Clerk would simply seek to The census includes roughly 70 sects of ‘Protestant
include prayers and reflections from the religious and Christianity,’ but the distinction between these is often
belief traditions with the most adherents in the province. relatively haphazard, and even this number does not seem
There are a number of challenges with this method to accurately capture the diversity of Protestant sects. By
however. First, there is the issue of how Statistics Canada one estimate, there are roughly 33,000 Protestant denom-
constructs the question regarding religion in the census. inations (Barrett et al. 2001).4 On the other hand, the cen-
Specifically, the census directs respondents to record “the sus provides no distinction between interpretations of
specific denomination or religion with which they iden- Buddhism, Islam or Judaism, despite the deep divisions
tify.” The problem of this approach is that this provides present in each of these traditions.
a measure of religious affiliation rather than of active Judaism, for example, is often categorized into Reform,
practice (see Beaman 2010: 270). Statistics Canada further Conservative, and Orthodox branches and there existBushfield and Phelps Bondaroff: The Arbiters of Faith Art. 8, page 9 of 16
sub-categories within each of these. For example, Orthodox Canada 2011). Of the 99 religious identities listed on
Judaism can be refined into Modern Orthodox, Open the survey, 17 constitute at least 0.5% of the popula-
Orthodox, Haredi, and Ultra Orthodox (which includes tion of BC. Including 17 separate prayers represents a
Hasidic and Yeshivish) (My Jewish Learning n.d.). The dif- more than tripling of the size of the current list; assum-
ferences between a Hasidic Jew and a Reform Jew are vast, ing only one prayer is included for each tradition and
likely more extensive than the differences between an that larger traditions are not apportioned a number of
Anglican and a Catholic. It seems arbitrary therefore, that sample prayers commensurate with their demographic
Christianity is subdivided into a wide range of denomina- representation.
tions, whereas divisions within other religious traditions A possible solution to this unwieldy list would be for
are ignored. bureaucrats to amalgamate the prayers of the 10 sects of
What level of granularity is acceptable for the pur- Protestant Christianity present on that list. While this may
poses of including a religious tradition on the list of sam- seem like a reasonable course of action at first blush, it
ple prayers? A risk here is that religions with more sects raises further questions regarding how such a decision
and denominations may be over-represented by ‘sample might be made, given that many of these sects formed
prayers’ or individual sects risk being under-represented because of sometimes nuanced and subtle differences
when subsumed into a larger category. in interpretations of the same texts. Would members of
Let us consider one possible threshold. Given Judaism’s an Anglican church be comfortable being included in
historical significance and the fact that it was the only the same category as members of a Pentecostal church?
religion, other than Christianity, that was found to be Would members of both of these groups feel adequately
over-represented in recent legislature prayers (Phelps represented by the same prayer? And how are bureaucrats
Bondaroff et al. 2019: 70), establishing a threshold that to make these determinations, given that they are likely
includes Judaism would be consistent with current prac- untrained in the subtle theological differences between
tice. In this instance, religions that can claim followings these traditions?
with at least as large a portion of the province could pre-
sent a strong a case to have one of their prayers included Demographics of the Legislature
on the sample list. Rather than relying on the demographics of the prov-
In the 2011 National Household Survey (Table 2), ince, the Office of the Clerk could choose to draft sample
23,130 people reported their religious identity as prayers reflecting the diversity of the Legislative Assem-
Jewish, representing 0.5% of the province (Statistics bly. This might prove more useful for MLAs, as they would
most likely choose from those prayers that reflect their
belief system. However, this would mean that the Office
Table 2: Percentage of BC population in private house-
of the Clerk would have to query individual MLAs about
holds by religion (Statistics Canada 2011).
their religious affiliation, identity, and belief, and the prac-
Religion Percentage tices stemming from them. This raises questions about
member’s privacy rights, as well as challenges with opera-
No religion 43.6%
tionalizing these beliefs into practice.
Roman Catholic 15.0% The Office of the Clerk would also need to continually
Christian (not indicated elsewhere) 7.2% update its religious data on members following every elec-
tion and by-election, in the event of someone with a new
United Church 5.1%
religious identity being elected. Similarly, some sort of
Anglican 4.9% reporting mechanism would need to be in place to allow
Sikh 4.7% MLAs to update the Office of the Clerk on any changes in
their beliefs, because “[o]ver the course of a lifetime, indi-
Baptist 2.1% viduals change and so can their beliefs. Religious beliefs,
Buddhist 2.1% by their very natures, are fluid and rarely static” (Syndicat
Muslim 1.8% Northcrest v. Amselem 2004: para.53; and see Charney
2010: 55).
Lutheran 1.7% Knowing the religious affiliation of each MLA would also
Protestant (not otherwise stated) 1.6% not tell the Office of the Clerk how each individual MLA
practiced that religion. As Sullivan notes, “most people
Pentecostal 1.3%
have a complex and changing relationship to one or more
Hindu 1.1% religious traditions… They simply do not fit neatly into a
Presbyterian 1.0% model which could be labeled ‘Presbyterian’ or ‘Buddhist’
or ‘Black Muslim’” (Sullivan 1998: 454). Likewise, simply
Christian Orthodox 0.9%
knowing an MLA’s religious affiliation tells the Office of
Mennonite 0.7% the Clerk nothing concerning that MLA’s beliefs or how
Jehovah’s Witness 0.6% these beliefs manifest themselves in practice. Knowing an
MLA’s religious affiliation does not, for example, inform
Jewish 0.5%
the Office of the Clerk where that MLA stands on theologi-
Note: Global non-response rate 26.1%. cal differences that might exist within that religion (seeArt. 8, page 10 of 16 Bushfield and Phelps Bondaroff: The Arbiters of Faith
Sullivan 1998). This raises all manner of thorny questions one advantage of a religious establishment is that
concerning belief, practice, and even sincerity of belief, you can ask the authorities. Without a religious
questions that the Office of the Clerk is not capable of establishment there is no way of making these
resolving. determinations. All we have is a set of divergent
Ultimately, this approach seems far more cumbersome opinions about religion and religious practice and
than simply leaving the entire endeavour to the MLAs no way of adjudicating among them.
themselves, as they are already empowered to draft their
own prayers, and certainly more capable of accurately rep- Deciding who to contact within a religious tradition,
resenting and expressing their beliefs than another actor. such as the highly decentralized charismatic Christian
Bureaucrats are on shaky constitutional grounds when it tradition or the various courts and dynasties of Hasidism
comes to making decisions regarding what is and what is is an impossible task. Any effort to solicit prayers from
not a religion and further lack a practical rational method various faith traditions will tend to favour religious tra-
for deciding which traditions to include. ditions with established hierarchies and structures that
are approachable. Less hierarchal religious traditions may
Which prayers to use? find themselves being overlooked for lack of an official
Presuming the Office of the Clerk is able to identify those spokesperson.
traditions to represent on its list of sample prayers and Most religions are at least somewhat decentralized and
reflections, bureaucrats would then be faced with the often have competing interpretations of the same texts.
even more onerous task of identifying specific prayers This is, as previously noted, the reason why many sects
(and other content) to reflect each of those traditions. and denominations emerge in the first place. Minor dif-
ferences in beliefs, dogma, language, and practices have
The bureaucracy is ill-suited to select specific prayers fuelled religious conflict for millennia. Ultimately, there
For a particular tradition, there may be a considerable are numerous reasons why sects differentiate themselves
number of commonly uttered prayers, each with a specific from coreligionists. As explored above, combining two
intent or purpose. The Anglican Church of Canada lists smaller but distinct sects introduces the possibility for
a number of resources for prayers, including ‘The Apos- disagreements over the content of a representative prayer.
tles’ Creed,’ ‘The Athanasian Creed,’ ‘The Nicene Creed,’ While Anglicans and Lutherans might find the ‘Lord’s
as well as daily Bible readings and a year-long calendar Prayer’ acceptable, it is unlikely that Hasidic and Reform
of prayers (The Anglican Church of Canada n.d.). Each of Jews would agree on a single acceptable and representa-
these prayers has a specific context and, while some may tive Jewish prayer.
not be suitable to the average Anglican for use in start- Even within a particular church, temple, or synagogue,
ing the Legislature’s proceedings, there remains the likeli- there is likely to be a diversity of opinion as to which
hood that more than one would be appropriate. prayers individuals might consider representative. Take for
The directive that the state not become the arbi- example the recent splits that have emerged within the
ter of religious dogma bears repeating (Syndicat Methodist Church (Burns 2020) and within the Canadian
Northcrest v. Amselem 2004: para.50). Clearly bureaucrats Anglican Church over same sex marriage (Valpy 2007), or
should not be put, nor put themselves, in the position to the emerging schism within Orthodox Christianity around
decide what constitutes an acceptable prayer for a specific the emergence of an independent church in the Ukraine
religious tradition. Instead, they should be looking for (The Economist 2020). As the Supreme Court of Canada
ways to extricate themselves from, or avoid, any situation has said, religion is “about freely and deeply held personal
where such determinations might arise. After all, what convictions or beliefs” (Syndicat Northcrest v. Amselem
grounds could the state have for selecting between two 2004: para.39), and while two members of the same faith
competing options without attempting to arbitrate reli- tradition may, for example, share the same book, it is
gious dogma? unlikely that they share identical interpretations of that
Aside from simply selecting prayers from well-estab- book. As such, we might reasonably expect there are as
lished and hierarchal traditions, how can bureaucrats many religious viewpoints as there are British Columbians.
select sample prayers from non-hierarchal religions or It is seemingly counterproductive then to attempt to
from ones without established dogmas? select a representative prayer without the input of the
congregants themselves. As such, any approach that solic-
Practical limitations on soliciting religious prayers its feedback from the largest religious organizations will
from religious representatives privilege the viewpoints of their spokespeople over the
A seemingly reasonable alternative approach might be actual congregants and worshippers whose beliefs the
to simply canvas the largest organizations representing bureaucrat is trying to reflect.
those selected belief systems. While finding representa- There are further complications relating to the nature
tive prayers for highly structured religious groups such of the spokesperson. First, there is the matter of whether
as the Roman Catholic Church should be straightforward a bureaucrat can verify that the person or people from
– bureaucrats could simply call up the local Archbishop whom they are soliciting prayers is a legitimate repre-
and ask him5 to submit a prayer – this is not as straight- sentative of that tradition. And in so doing, do they risk
forward for most traditions. Or as Sullivan (1998: 452) weighing in on matters of dogma and the internal affairs
explains, of that group?You can also read
