2.1 Religion and state relations historically in Canada

Many scholars and commentators note a lack of historical awareness in current-day discussions of ”reasonable accommodation” and ”religion in public space.” This is especially the case when looking at the evolving ways that Canada has negotiated religious diversity and set its current secular approach. Scholars chart at least three main phases in Canada’s historic response to governing religious diversity. These move along a continuum from a single (Catholic and then Anglican) state-supported church with a virtual religious monopoly on public culture and institutions towards a more inclusive current-day secular, multicultural approach.

These eras have been generally described as:

1608-1841: European Catholics and Protestants sought to transplant their forms of Christianity to Canada through a state-supported Christian church, with little religious freedom.

1841-1960 Plural or shadow Christian establishment prevailed. While there was no official state church, there was a Christian culture and state cooperation with a limited number of “respectable” Christian churches (Anglican, Presbyterian, Methodist/United, Baptist and Roman Catholic churches).

1960-present: Society became more secular, with greater “separation of church and state,” and an overtly multicultural approach to religion.[31]

Early efforts to establish an official state church in Lower and Upper Canada were largely frustrated by: (1) the practical challenges of extending parish administrative control over a vast and diverse territory with limited resources; and (2) the need for strategic compromises and political concessions in the face of the stubborn reality of religious pluralism on the ground, which has been a permanent feature of the Canadian social landscape. [32]

The new dominion of Canada that confederated in 1867 joined the mainly English-Protestant Upper Canada (Ontario) with French-Catholic Lower Canada (Quebec). Under the British North America Act, 1867, the new nation was bound by a uniquely Canadian compromise that remains with us today. This compromise does not establish any single state church, or require the separation of church and state.

Despite this early legal recognition of religious freedom in Ontario,[33] scholars have coined the term ”plural establishment”[34] or ”shadow establishment”[35] to describe the special privileges and government support and recognition extended to a limited number of mainline Anglo-Protestant (Anglican, Presbyterian and United) Churches and the French Roman Catholic Church. Other Christian denominations such as the Lutherans, Baptists and various evangelical groups also later joined the plural establishment’s “circle of respectability,” as “junior partners.”[36]

Many of Ontario’s most cherished contemporary institutions – including educational, healthcare and social service related – were created by Christian organizations in this era of “Christian Canada” (1841 – 1960). Today, many people do not recognize the central and formative role played by Christianity in building Ontario’s social, moral, legal and institutional fabric. A more recent body of work has emerged to highlight the positive contributions of religious actors and associations in Canadian history and society, particularly in building civil society and generating and contributing to “social capital” in Canadian society.[37] This key role continues to the present, and has contributed to Canada having, by some estimates, the second largest voluntary sector in the world (the largest segment of which is religion-based).[38]

2.2 Historical forms of discrimination based on creed

Advocating for the separation of Aboriginal children from their parents in Christian church-run residential schools, John A. Macdonald, Canada’s first Prime Minister, explained to the House of Commons in1883: “When the school is on the reserve, the child lives with his parents who are savages; he is surrounded by savages, and though he may learn to read and write, his habits and training and mode of thought are Indian. He is simply a savage who can read and write.”

– (Truth and Reconciliation Commission of Canada, 2012, p.6)

The history of the mainline Christian churches in Canada, however, also has a darker side that is sometimes forgotten. Scholars describe the emergence of a “Christian common sense” in Ontario between the mid-1800s and the 1960s, where “to be a (proper) Canadian, one had to be a (proper) Christian”.[39] Drawing such equations between race, religion, civilization and belonging led to extreme consequences, such as the assimilation policies and laws the Canadian government enacted to govern Aboriginal Peoples and cultures, particularly following the introduction of the Indian Act in 1876.[40]

Disparaging and legally suppressing Aboriginal spiritual practices and traditions was an integral part of the Canadian colonial project. Government and church authorities often worked hand in hand in this process. Only now, through the work of the Truth and Reconciliation Commission, are Canadians starting to grapple with the ongoing, intergenerational impact of the concerted effort to “Christianize and civilize” the Indigenous peoples of Canada, which culminated in the residential school system administered by Christian churches between 1620 and 1996.[41]

Residential schools in Canada

• 1831 Mohawk Indian Residential School opens in Brantford, Ontario; it became the longest-operated residential school, closing in 1969
• 1847: Egerton Ryerson’s study of Indian education recommends religion-based, government-funded industrial schools
• 1857: Colonial government of Canada (including what is now Ontario and Quebec) passes Act for the Gradual Civilization of the Indian Tribes in the Canadas
• 1860s: Assimilation of Aboriginal people through education becomes official policy
• 1876 Canada enacts first Indian Act
• 1884: Canadian Parliament outlaws the potlatch, the primary social, economic and political expression of some Aboriginal cultures
• 1892: Federal government and churches enter into partnership to run “Indian schools”
• 1951: Responding to international criticism, Parliament amends the Indian Act to remove anti-potlatch and anti-land claims provisions
• 1963: Federal government undertakes an “experimental” project by sending at least six Inuit children to Ottawa to study, to gauge how they would assimilate
• 1969: Partnership between government and churches ends; government takes over residential school system, begins to transfer control to Indian Bands
• 1996: Last government-run residential school closes
• 2008: Government of Canada offers Residential School Apology.

While First Nation spiritual rituals were a primary target of colonizing efforts, racism and religious prejudice in Canada also took shape in persecution and discrimination against Sikhs, Hindus, Buddhists (among other Chinese and Japanese religious practitioners), Muslims, Jews and other non-conforming groups, including disfavoured Christian minorities, atheists and agnostics.

After Aboriginal Peoples, Jews formed the largest non-Christian religious minority group in Canada, historically. Jewish communities have experienced antisemitic[42] prejudice, discrimination and, in some cases, violence since their arrival in the 1700s. Some egregious examples of this history include:

• The expulsion of Ezekiel Hart (the first elected Jewish official) from the Ontario (Lower Canada) Legislative Assembly, despite his re-election to the Legislature of Lower Canada in 1807, because he could not take the oath of office “on the true faith of a Christian”[43]
• The extensive web of Jim Crow-like restrictions overtly barring Jewish people from various mainstream social, political, economic and cultural institutions in Ontario society well into the 20^th century[44]
• Acts of hatred and violence against Jews, such as the well-known 1933 Christie Pits riots in Toronto. This conflict involved six hours of violence between Jewish and Christian youths, and was followed by setting Jewish synagogues on fire and other personal attacks against Jews in public spaces.

One of the lowest points in this Canadian history of antisemitism was Canada’s rejection, in some cases with fatal consequences, of Jewish refugees fleeing Nazi Germany, due to widely held beliefs that Jews were racially and religiously inferior.[45] These beliefs led Canada to place Jews in ”non-preferred” immigrant categories. Despite such treatment, the Canadian Jewish community persevered, and went on to rise to the forefront of the fight for human rights and anti-discrimination legislation in Ontario in the post-War era.[46]

Canadian immigration policy also proved to be a key tool in thwarting the entry of other “undesirable” ethno-racial and religious minorities in the 19^th and 20^th centuries, often through indirect and seemingly benign ways. Among the more famous examples are: the introduction of the Chinese head tax with the Chinese Immigration Act[47] of 1885 following Chinese labourers building of the Pacific Railway; and the passage of the Continuous Journey Act[48] in 1908, which, in effect, barred the immigration of “Hindoos” (as all Indians were called at the time, no matter what their religion). Discrimination and hostility towards these Asian immigrant groups, scholars note, had significant religious elements.[49]

Atheists, agnostics, humanists and the non-religious were also persecuted during the era of ”Christian Canada.” In one famous case, the citizenship applications of an avowed atheist immigrant family (Ernest and Cornelia Bergsma) from the Netherlands were twice denied before being successfully granted in a 1965 Ontario Court of Appeal ruling. The judge presiding over the initial citizenship hearing at the Haldimand County Court in Cayuga, Ontario, on April 3, 1963, deemed the Bergsmas to not be of sufficiently good character, or suited to life in a “Christian country,” based on their professed atheism.[50] He also found them unable to comply with the required oath of allegiance.[51]

Scholars also note that a great deal of dominant group energy was expended battling enemies within the Christian camp – those deemed heterodox, at best, and heretical, at worst. In fact, for most of Canada’s history, the main defining religious differences were between Christian denominations (Catholic and Protestant in particular). Christian minorities outside the plural establishment’s “circle of respectability,” such as Mennonites, Jehovah’s Witnesses, Seventh Day Adventists, Hutterites, Eastern Orthodox and Evangelicals, also faced significant and persistent discrimination and prejudice.[52] This exclusion sometimes intersected with other forms of racism and prejudice against ”less desirable” classes and “races” of European immigrants.[53]

2.3 Evolving policy and legal protections for religion and creed

Most historical accounts of the evolution of religious freedoms in Canada note a fundamental shift in law, policy and social discourse in the post-WWII era (see Appendix 22 which charts historical, legal, policy and demographic shifts over this era).[54] Public policy and law, particularly since the 1960s, has increasingly come to embrace values of diversity, equality and non-discrimination.[55] A new “secular” consensus has also contributed to the progressive privatization of religion and de-privileging (or “dis-establishment”) of Christianity in public and state institutional life.[56] The introduction of the Ontario Human Rights Code (the Code) in 1962 and, some 20 years later, the Canadian Charter of Rights and Freedoms (the Charter), both reflect and have helped to further entrench such “sea changes” in Canadian public values and culture.[57]

An example of the “sea change”

One historian captures this “sea change” in Canadian public culture by comparing the installation of the 19th and 27th Governors-General of Canada:

On September 15, 1959, Georges Vanier was installed as Canada's 19th Governor-General, the Queen's formal representative in her Canadian dominion. Vanier, a much decorated general, diplomat, and active Roman Catholic, began his acceptance speech like this: "Mr. Prime Minister, my first words are a prayer. May Almighty God in his infinite wisdom and mercy bless the sacred mission which has been entrusted to me by Her Majesty the Queen and help me to fulfill it in all humility. In exchange for his strength, I offer him my weakness. May he give peace to this beloved land of ours and, to those who live in it, the grace of mutual understanding, respect and love."

Fifty-six years later, on September 27, 2005, Michaëlle Jean became the 27th Governor-General. Jean, a multilingual, Haitian-born filmmaker and journalist, offered a forward-looking address that stressed, as had Vanier's, the importance of mutual tolerance for Canada's social well-being. Otherwise, however, there were no themes in common, for Jean's primary concern supporting individual liberty; for her, Canadian history "speaks powerfully about the freedom to invent a new world." In this speech there was no mention of the deity. [58]

Benchmarks in the evolution of religious freedom and equality rights in Canadian case law since the 1960s include adopting and applying “reasonable accommodation” approaches to creed and freedom of religion cases under the Code and Charter in the 1970s. This supported the right to not only non-interference or freedom from religious coercion, but also a positive right or entitlement to have one’s religion/creed beliefs and practices accommodated to the point of undue hardship.[59]

Legal scholars note a further evolution of creed rights in recent years. “Adverse-effect” discrimination claims have increasingly challenged systemic forms of discrimination and the way “things have always been done.” For example, (Bhabha, 2012) argues that the new “transformative vision of religious freedom” is about more than seeking exceptions to rules and norms in public space (as accommodation has traditionally been conceived). It is also about engaging to redefine and reconstruct public space itself.[60] Despite such significant advances, various forms of discrimination continue in today’s more secular world. The next section explores some of these.

3.1 Profile of HRTO creed applications (2010-2012)

The OHRC reviewed all applications (formerly known as “complaints”) filed with the Human Rights Tribunal of Ontario (HRTO) citing creed as a ground of discrimination in the 2010-11 fiscal year (April 1, 2010 to March 31, 2011), and 2011-12 fiscal year (April 1, 2011 to March 31, 2012). We started with a list of applications that the HRTO collated from its case management database, and ended up including 179 applications for review in 2010-11, and 140 for review in 2011-12.[61]

Applications citing creed accounted for 6.8% of all HRTO applications filed in the 2011-12 fiscal year, up slightly from 6% in 2010-11 (see the Chart below and Appendix 22.1 for breakdown of HRTO applications filed in the 2011-12 and 2010-11 fiscal years by ground). While this number appears relatively low, it may not reflect the actual extent of discrimination experienced by various communities in Ontario, due to such factors as under-reporting, mis-reporting, and the unknown outcome of applications alleging discrimination.[62] HRTO application statistics reported on here provide a description of the number and nature of applications citing creed as a ground of discrimination filed at the HRTO. It is difficult to gauge how much this may reflect broader trends, in part for the above-mentioned factors.

2011-2012 HRTO applications by ground

Source: HRTO, retrieved June 21, 2013, from www.hrto.ca/hrto/?q=en/node/152

*The above chart shows the percentage of applications in which each prohibited ground under the Code is raised. Because many applications claim discrimination based on more than one ground, the totals in the chart far exceed the total number of applications received.

3.1.2 Applications by creed affiliation

*Miscellaneous: Elemental magic, Ethical veganism, Kabala, Membership in law society of Canada, Rastafarian, Taoism, Wiccan, Yoga system & cosmology, Zen, Zoroastrianism

Intersecting grounds

Percentage of HRTO applications citing creed by intersecting grounds (2011-2012 fiscal year) 

A majority of HRTO creed applications - 50.7% in 2011-12, and 60.3% in 2010-11 - also cited a race-related ground in addition to creed (in order of frequency, ethnic origin, place of origin, race, ancestry, colour) (see graph above, and Appendices 22.7-22.10). Only 14% of HRTO creed applications in 2011-2012, and just over one-quarter (or 28.6%) in 2011-2012, only cited creed as a ground of discrimination. Such findings are consistent with research on the significant intersecting impact of ethnic and racial dynamics in discrimination based on creed (see section 3.2.3 for more discussion).

3.1.3 Social areas

Number and percentage of HRTO applications citing creed by social area (2011-2012 fiscal year)

All human rights applications must cite a Code “social area” as well as a prohibited ground of discrimination. Almost 73% of all 2011-2012 HRTO applications citing creed, and 62% of 2010-2011 HRTO creed applications, identified employment as the social area. The area of services, goods and facilities was cited in 24.3% of 2011-12 creed applications, and housing accounted for almost 3%.

HRTO creed applications compared to all HRTO applications by social area (2011-2012 fiscal year)

The distribution of creed applications across social areas is broadly consistent with larger trends in HRTO applications. While most creed applications, like all HRTO applications, occur in the social area of employment, when compared to all applications in this period, creed applications are slightly over-represented in the area of services[67] and under-represented in employment (see above graph and Appendix 22.11, 22.12). This discrepancy is even greater in 2010-2011 applications (see Appendix 22.13 and 22.14).

3.1.4 Accommodation

Our review of the 2011-2012 HRTO creed applications revealed that religious accommodation issues, mostly in employment contexts, featured prominently (in just over 42% of creed applications) among the kinds of discrimination issues alleged in applications (see the graph below). Though not systematically tracked in the same way, incidents of harassment and differential/prejudicial treatment based on creed were also fairly commonly alleged in creed applications.

Percentage of HRTO creed applications citing creed accomodation (2011-2012 fiscal year)

3.1.5 Sex

The 2011-2012 review of HRTO creed applications tracked applications by the sex of applicants (where indicated, based on self-identification) and found that a greater number of these applicants were male (57.1%) compared to female (34.3%). It is difficult to infer the extent to which this may reflect wider trends in creed discrimination. Such differences in the numbers of applications filed by males compared to females could reflect a variety of causes (including, potentially, the greater propensity for men to report alleged incidents of discrimination). The extent to which this pattern in reporting is unique, or similar to wider trends in HRTO applications, cannot currently be determined, since the HRTO does not track demographic information on the sex of applicant groups.

Percentage of HRTO applications citing creed by sex (2011-2012 fiscal year)

3.1.6 Geographical distribution

Most applications citing creed were from applicants in the central (47.1%) and Toronto (30.7%) region, perhaps reflecting, at least in part, the greater ethnic and religious diversity in these regions, compared to other regions (see graph below, and Appendix 22.16 ). The top five locations for 2010-11 creed-based HRTO applications were: Toronto (accounting for 45% of all applications); Mississauga (8.3%); Ottawa (4.7%); Brampton (4.1%), and London and Richmond Hill, which each accounted for 2.3% of all 2010-11 HRTO creed applications (see Appendix 22.18).[68]

Geographical distribution of HRTO applications citing creed (2011-2012 fiscal year)

Relative to the geographical distribution of all HRTO applications, a disproportionate number of creed applications in both 2010-11 and 2011-12 were from applicants in the Toronto and Central Ontario region (see Appendices 22.17 and 22.18).[69]

Systemic faithism refers to the ways that cultural and societal norms, systems, structures and institutions directly or indirectly, consciously or unwittingly,[128] promote, sustain or entrench differential (dis)advantage for individuals and groups based on their faith (understood broadly to include religious and non-religious belief systems). Systemic faithism can adversely affect both religious and non-religious persons, depending on the context, as discussed in the examples below. Some forms of systemic faithism can be actionable under the Code (e.g. those amounting to “systemic discrimination”),[129] while others may not be (e.g. those taking broader cultural or societal forms). This section looks more closely at two dominant forms of systemic faithism in the current era, flowing from the “residually Christian” structuring of public culture and institutions, and from “closed secular” ideology and practice.

4.1 Residual Christianity and systemic faithism

Scholars studying the contemporary Canadian religious/creed landscape have used the term ”residual Christianity” to highlight various legacies in Canadian public life from the era of “Christian Canada” (1841-1960).[130] To be more specific, the term draws attention, to the ways such legacies continue to directly or indirectly structure contemporary ”secular” Canadian institutions. While scholars using the term are generally critical of the systemic faithism that can result from this,[131] others argue that this is as it should be: that, as a historically Christian nation, Canada should continue to privilege Christianity in public life in keeping with its historical identity and tradition (to which others should “accommodate”).

Among the most obvious examples of residual Christianity in Ontario are the two statutory holidays organized around the Christian high holy days (Christmas and Easter), and public funding in Ontario of Roman Catholic separate schools, but not other religion-based schools.[132] Scholars have highlighted many other examples, both symbolic[133] and institutional.[134] One example in Ontario law is the Ontario Education Act’s provision in section 264(1) – under the subheading “Duties of teachers” – which explicitly states, in subsection (c) on “religion and morals” that it is the duty of the teacher or temporary teacher to:

inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.[135]

Section 19 of the Ontario Human Rights Code preserving separate school rights under the 1867 Constitution Act, and 1990 Education Act, also states, “This Act does not apply to affect the application of the Education Act with respect to the duties of teachers.”[136]

Some legal scholars argue that the very laws that serve to protect religion and creed – including defining what is protected as such – reflect modern, western, liberal understandings of religion, in particular as shaped by historical liberal Protestant Christianity in Canada.[137] Among the defining features of this alleged dominant approach to religion in Canadian law and jurisprudence is a privileging of individual autonomy and private (textual-focused) belief over more public and collective forms of worship, practice and identity. The more individuals’ and communities’ religious/creed beliefs and practices resemble this norm, such scholars argue, the more likely they are to be recognized and accommodated by law and society.[138]

In many contemporary controversies around religion in the public sphere – for instance those involving Muslims, Jews, Sikhs and non-mainstream Christian minorities - such norms have been, or are perceived to be, violated or threatened.[139] Survey and opinion poll research supports the contention that many Canadians are more accommodating of religious beliefs and practices that remain confined to the private sphere, than they are of expressions of identity and faith that take more public, collective and visible forms, against liberal Protestant and secular norms.[140] The same research also reveals a double standard sometimes at play where religion in public is tolerable if it is consistent with Canada’s mainline Christian past, but is unacceptable when laid claim to by religious minorities.[141]

Scholars argue that one consequence of the culturally conditioned way that the law conceives and protects religion and creed is a failure to equitably protect the religious freedom and equality rights of religious minorities whose practices significantly depart from the dominant liberal Protestant norm. For example, scholars have observed how Aboriginal spirituality can often go unprotected under current freedom of religion laws. This happens when the courts fail to recognize and comprehend Aboriginal expressions of spirituality, many of which blur conventional western distinctions between sacred and profane activity, ritual worship and everyday life, and spirituality and ecology.[142] 
Differences between definitions of religion in law, and how “religion” is traditionally conceived (if at all) and practiced in various religious minority communities (including, among others, Muslim, Jewish, Hindu,[143] Buddhist,[144] Sikh, and Chinese[145] Canadian communities) have also been shown to contribute to the unequal access to, and recognition of religious minorities’ religion/creed equality rights and freedoms.[146]

Also, Christians who practice their faith in more public and collective ways may find themselves disadvantaged by this dominant understanding of religion in law and society. However, there are also many case law examples of diverse belief systems and practices protected under the Code ground of creed, even where practitioners do not consider themselves to be practicing religion per se.[147]

Members of non-religious movements and creeds can also find themselves structurally disadvantaged and inequitably treated under law and policy, which tends to privilege recognized ”religions” and religious practices. Some examples of how contemporary law can advantage religious groups and organizations over non-religious ones include granting:

• Tax exemption on lands used by religious communities for religious purposes, and for the residence costs for ministers, priests or other religious leaders
• Charitable organization status for religious organizations making contributions to churches, mosques, synagogues and temples, as well as a host of tax deductibles for religious organizations.[148]

These same privileges and protections are denied to organizations and communities coalescing around non-religious creeds.[149]

Newer religious movements (NRMs)[150] and “para-religious groups”– both of which are on the rise[151] – have also been vulnerable to stigmatization, social exclusion, prejudice and discrimination, in some cases because of stereotypes and assumptions from the Christian past.[152] Such stigma was evident in the public outcry and media coverage of a recent proposal to fund a Wiccan chaplain in a federal prison, which led the federal government to review and then retract funding for all part-time prison chaplains. Many of these creed communities have a highly non-central and individualistic character, and include beliefs and practices that do not always fit neatly within the terms and definitions of established legal protections for religion, creed or conscience (see Section III for more on this challenge).

Communities organized around lesser known creeds can also face significant public scepticism and enhanced scrutiny when advancing creed-based human rights claims.[153] This can be due to minimizing their seemingly “strange” beliefs, or to antipathy to their non-theistic orientation (“atheists can't have principles") in what remains a predominantly (arguably post) theistic Christian public culture.[154]

4.2 Closed secularism and systemic faithism

Secularization and the privatizing of religion has been the dominant historical response in Canada (post WWII) to conflicts between and within various faith traditions. While an advance over the era of overt religious privilege and discrimination against persons of minority faith/creed traditions, the ongoing process of secularization in Canada has not been without its own exclusions. This section looks more closely at some of the inadvertent forms of discrimination and exclusion that religious communities can encounter when narrow (“rigid” or “closed”) models of secularism prevail that seek to bar religious voices, practices and perspectives in public life, based on alleged principles of “neutrality,” in ways that can inadvertently advantage non-religious persons. The section also adds clarity to the meaning and interpretation of the secular, in Canada, and its implications for accommodating religion in the public sphere.

4.2.1 History, definition and goals of the secular

Many scholars and commentators have noted the cloud of confusion often surrounding uses and understandings of the ”secular” in contemporary public discourse and debate about religion in public space.[155] Early uses of the term secular, dating back to the 14^th century, simply meant attention to things of this world as distinct from eternal matters.[156] The positivist movement later adopted the term and developed it as a full-fledged ideology.[157] This movement sought to free politics and society of all religious conceptions in favour of a new morality exclusively concerned with human well-being in the present life based on science and rationality. While aspects of this broader ideology have tacitly shaped modern political uses of the term,[158] contemporary scholars nevertheless distinguish between ”secularism” as an ideology, and “secular” (or secularity) as “the modus operandi of a society that does not look to any particular religious tradition for the validation of its political authority”.[159]

Scholars argue that much public debate about the demands of the secular suffers from a failure to distinguish between the underlying goals (or ends) of secularity, and the particular historical institutional arrangements (or means) for achieving them.[160] More often than not, the meaning of the “secular” is simply asserted and assumed rather than explained and explored,[161] in ways that can detract from analyses and appreciation of the plurality of values and options really at stake.

To avoid this conflation of aims and means, Canadian political philosopher Charles Taylor (2010) argues that it is helpful and prudent to begin discussions about appropriate responses to (religious) diversity with a clear understanding and engagement with the fundamental goals (or ”goods”) of the secular. These core goals include:

1. Liberty – maintaining non-compulsion in matters of religion and belief (the ”free exercise” of religion and conscience, including the freedom not to believe)
2. Equality – the equal treatment of people of different faiths or beliefs (with no one moral outlook, religious or a-religious, enjoying a privileged status in public life).[162]

These goals can and do conflict with one another. Scholars point out that understanding secularity as a “multi-value doctrine,” with at times conflicting constitutive values, is to acknowledge the need to continually and contextually reconcile and balance these competing goals, on a case-by-case basis, without recourse to a general (argument-stopping) abstract rule or principle.[163] How societies choose to balance and weigh each of these goals will shape the particular character and form of their secular arrangements.[164]

4.2.2 Secular models: open versus closed

Existing secular institutional arrangements generally range along a continuum from anti-religious models, which seek to completely remove religion from the public sphere, to liberal and pluralistic models, which are more inclusive of religion in public life.[165] Though all models generally uphold some commitment to “principled distance” of the state vis-à-vis any one moral orientation or belief system, these can nevertheless be usefully contrasted and categorized into two main types: open and closed secular models (see Appendix 31 for contrast of open versus closed models of secularism).[166]

Open models of the secular generally emerged historically in contexts of, and response to, religious pluralism (as in Canada, India, USA). These models tend to be based on liberal pluralist political theories that affirm diversity in general, and thus welcome religion in public space, subject to limitations of non-compulsion and equality of treatment.[167] In contrast, closed secular models generally emerged in societies dominated by a single powerful church/established religion. The closed model – sometimes referred to in shorthand as ”laïcité”[168] – tends to be inspired by republican[169] (“melting pot”) political theories that seek to eliminate religion in the public sphere, and bind members of political society through shared allegiance to civic (European Enlightenment) ideals and values. Appendix 31 talks further about distinctions between these two main contending secular models.

4.2.3 The Canadian model

Despite popular perceptions to the contrary, the Canadian Constitution itself does not explicitly affirm secularism as an autonomous legal principle, nor require separation of church and state, or state religious neutrality.[170] Statutes explicitly mentioning ”secular” are few and far between.[171] However, most would agree that the general contemporary social, political and legal consensus in Canada is “secular without being secularist”.[172] This affirms the need for the state and public institutions to retain a sufficient degree of “principled distance” from any particular religion or belief, to not privilege or impose any one over any other. Yet, at the same time, this consensus does not impose a “new secular morality” or require people of faith to check their faith at the door.[173] Legal and political analysts generally agree that the Canadian approach to governing religious diversity – although regionally and administratively diverse[174] – is mostly the open secular model described earlier. This is widely seen to be affirmed in religious freedom and equality case law,[175] and as being most consistent with Canada’s legal and policy commitments to diversity and multiculturalism.[176]

While secular is not a term in use in the Ontario Human Rights Code or any OHRC policies, it has been cited in a few Charter rulings in the higher courts. The few Canadian Law Dictionaries containing entries for ”secular” all singularly refer to a 2002 Supreme Court of Canada decision, Chamberlain v. Surrey School District,[177] arising out of the British Columbia School Act, as defining of Canadian legal understandings of the secular (see Appendix 32 for full definitions). The Supreme Court of Canada and British Columbia Court of Appeal decisions both affirmed an inclusive Canadian legal understanding of secular as open to religious expressions in the public sphere.[178] For example, the Canadian Law dictionary reflects this stance:

• The meaning of strictly secular is thus pluralist or inclusive in its widest sense.[179]
• Religion is an integral aspect of people's lives and cannot be left at the boardroom door (see Appendix 32 for full definitions).[180]

Since the Chamberlain decision in 2002, the courts have largely upheld this view. They have recognized, in accord with the first precedent-setting freedom of religion case under the Charter - R. v. Big M Drug Mart[181] - individuals’ right to believe as they choose, and also their “right to declare religion openly and without fear of hindrance or reprisal, and…to manifest belief by worship and practice or by teaching and dissemination”, whether in private or in public.[182] This approach was recently reconfirmed in a much publicized (Dec. 20, 2012) Supreme Court of Canada decision, R. v. N.S.[183], involving the right of a Muslim women to wear the niqab (full face veil) while testifying in a criminal proceeding. Writing on behalf of the majority, Chief Justice McLachlin wrote:

A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.[184]

In another important (2013) decision, R.C. v. District School Board of Niagara,[185]  the HRTO affirmed a legitimate place for the expression of diverse religious ideas and practices within public schools and institutions, provided particular requirements are met.[186]

4.2.4 Tensions and points of debate about religion in the public sphere

Legal scholars thus generally agree on the “open secular” texture of Canadian policies, law and jurisprudence. However, some debate remains about appropriate limitations on freedom of religion in the public sphere.

Limitations on freedom of religion in the public sphere

It is a basic freedom of religion principle that “the freedom to hold beliefs is broader than the freedom to act on them.”[187] Limitations on acting on religious beliefs derive in part from recognizing their more direct potential impact (compared to beliefs) on the rights of others.

However, views vary on where to draw the line on limiting religious practices in the public sphere. Positions tend to range along a continuum from tolerating no religion in public space (closed secularism) to advocating no limits on expressing and manifesting religion in public space. Neither of these positions are legally tenable in the Canadian legal context, which recognizes that a right to express and practice religion in public exists, albeit subject to limitations and balancing with other competing rights.

People advocating greater limitations on religion in public tend to favor the need to reach consensus on and defer to core common civic values, for instance as enshrined in the Charter of Rights and Freedoms (e.g. freedom, dignity, autonomy, security, equality, diversity, democracy).[188] In this perspective, religious practices in the public sphere, may be limited where they significantly grate against these core values.[189] In this view, religious believers crossing over the private to public sphere threshold must play not only by their own religious rules, but also by the liberal rules and norms of the Canadian public sphere (at least while there). This leads us to ask, what precisely are those fundamental “Canadian values” that shape and underlie our rights and freedoms? And to what extent are these values non-negotiable?

“Secularists must accept that religion is not left at the public door, but religious actors must also accept that they are no longer only playing by religious rules when they pass through the public door.”
– OHRC Legal Workshop participant

“Is there a way to think about what the obligations are entering into the public sphere? One view is that it is just to articulate your own beliefs, defend and advocate for them. Another is that there is an obligation when you enter the public sphere to recognize that there is widespread disagreement, and that you don’t just have an obligation to articulate your own, but also to stand in the shoes of others.”
– OHRC Legal Workshop participant

For instance, some people have argued that gender equality is or should be a non-negotiable “Canadian value” that should automatically trump religious freedoms in the public sphere.[190] Charter jurisprudence, however, generally suggests that no right is absolute, and that there is no hierarchy of rights.[191] The secular ideal of state neutrality is also sometimes used to defend a maximal view of limitations on religion in public life (as is discussed further below).

People favouring fewer limitations on religion in the public sphere generally acknowledge the need for at least a minimal degree of consensus around shared civic values. However, they tend to either privilege the values of diversity and freedom of religion, conscience, expression and association as core Canadian values,[192] and/or argue for a much thinner language of civic values, stripped down to a procedural minimum.[193] While some argue that expressing religion in public space should be limited only by criminal law tests, others hold that the state should refrain as much as possible from imposing any substantive moral vision of what is good on the citizenry.[194] Still others question the ground rules and values of Canadian society itself, from a religious perspective.[195]

The Ontario Human Rights Code affirms the right to equal treatment for religious/creed adherents, which includes a duty to accommodate their religious or creed practices in both private and public spheres of activity governed by the Code. This is consistent with the Code’s overarching aim to create an inclusive Ontario society where the dignity and worth of all Ontarians is respected (including people with diverse religious views). The distinction between the public and private sphere is largely irrelevant to Code considerations of whether a duty to accommodate religion or creed exists.[196] This duty is only limited by considerations such as undue hardship, bona fide requirements, and the need to balance creed-based rights with the legally enshrined rights of others, when they conflict with one another.[197] Notably absent in this is any consideration of whether the right or duty plays out in public or private. In fact, to not accommodate religious observances in protected social areas (services and facilities, employment, housing, contracts and vocational associations), in public or private, can contravene the Code.

Neutrality and its limits

It is common for proponents of more closed secularism models to advocate for complete banning of religious expressions in public life to maintain “neutrality” in public affairs. For example, this perspective is evident in arguments that because something is public or publically funded, it must exclude religion or religious sensibilities to remain neutral or secular.[198] However, critics argue that the idea that taking religion out of the public sphere renders it neutral or secular fails to acknowledge how this can inadvertently privilege agnostic and atheist perspectives in the public square and thus put religious believers at a distinct disadvantage “compared to other bearers of comprehensive viewpoints.”[199] “[W]e are all believers,” Benson argues in this respect, “it is not a question of whether we believe, but what we believe in.”[200]

“[The] public sphere is [sometimes] spoken of as ‘neutral’ because it has been stripped of its narrow religious adhesions. What is not recognized (or debated) however, is that what is left when express religions are excluded from public complex spaces are the implied and inchoate beliefs of other belief systems that, not being animated by religion, seem to get a ‘pass’ and a special right of involvement (and funding) within the ‘public’ systems.”[201]
– Iain Benson

In the landmark Supreme Court decision in Chamberlain, Mr. Justice Gonthier and Justice Bastarache in their dissenting judgement, similarly take issue with the equation sometimes drawn between “secular”, “non-religious”, and “neutral”, as found expression in an earlier ruling by Saunders, J.[202] Describing the problems with this reasoning, in this overturned decision, Gonthier, J. states:

In my view, Saunders J. below erred in her assumption that “secular” effectively meant “non-religious.” This is incorrect since nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. I note that the preamble to the Charter itself establishes that “…Canada is founded upon principles that recognize the supremacy of God and the rule of law.” According to the reasoning espoused by Saunders, J., if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has “belief” or “faith” in something, be it atheistic, agnostic or religious. To construe the “secular” as the realm of the “unbelief” is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.[203]

Highlighting how ‘neutral constructs’ (in this case the secular) can often have unequal consequences for equity-seeking communities, as recognized in human rights jurisprudence, Bhabha analogizes to the disability context, where it is widely recognized today that the constructed world is not neutral but privileges the able-bodied.[204]

Though not explicitly stated in the Constitution, the Supreme Court of Canada has nevertheless inferred and affirmed, on many occasions, a duty of religious neutrality of the state as a consequence of sections 2(a) and 15 of the Charter, protecting freedom of religion and religious equality. However, Canadian legal scholars point out that in the Canadian legal context, where neither neutrality nor secularism operate as autonomous constitutional principles, the duty of neutrality is sourced, in the first instance, in the principle of religious equality and freedom of religion.[205] This has important implications as it suggests that the duty of state neutrality is relative. It is not an end in itself, but rather a means to the end of advancing religious equality and freedom of religion. This is supported in several high court legal decisions.[206]

Expressing and accommodating religion in the public sphere, from this perspective, need only be constrained by such considerations as:

• The need to maintain liberty (i.e. non-compulsion in matters of religion and belief)
• The need to maintain equality and non-discrimination – to not privilege or endorse any one faith (religious or non-religious) over any other
• The impact on the competing rights of others and the need to protect public safety, order, health and core constitutional values.

From this human rights-based perspective, religion is a fully legitimate part of public life and it is also a necessary part of a fully inclusive public sphere.[207]

Legal analysts also point to the (2012) S.L. v Commission scolaire des Chênes[208] Supreme Court decision as evidence of the evolution of a more nuanced approach to the ideal of neutrality. The majority of the Court in S.L. conceded that, “from a philosophical standpoint, absolute neutrality does not exist”.[209] This decision also acknowledges “the difficulty of implementing a legislative policy that will be seen by everyone as neutral and respectful of their freedom of religion”,[210] citing Richard Moon in this respect:

If secularism or agnosticism constitutes a position, worldview, or cultural identity equivalent to religious adherence, then its proponents may feel excluded or marginalized when the state supports even the most ecumenical religious practices. But by the same token, the complete removal of religion from the public sphere may be experienced by religious adherents as the exclusion of their worldview and the affirmation of a non-religious or secular perspective . . . .
...Ironically, then, as the exclusion of religion from public life, in the name of religious freedom and equality, has become more complete, the secular has begun to appear less neutral and more partisan. With the growth of agnosticism and atheism, religious neutrality in the public sphere may have become impossible. What for some is the neutral ground on which freedom of religion and conscience depends is for others a partisan anti-spiritual perspective.[211]

While the court ultimately maintained that the state should still strive to be as neutral as possible, such neutrality was explicitly inclusively conceived,[212] in terms of religion, as “show[ing] respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the affected individuals.” Nevertheless, there are countervailing court decisions that, some have argued, appear to equate secularism (qua absence of religion) with “neutrality,” “non-discrimination,” “tolerance” and “non-sectarianism.”[213]

4.3. Consequences of systemic faithism

Some scholars argue that among the main adverse consequences of the idea that contemporary Canadian secularism has solved the problems of religious discrimination and inequality by providing for a neutral and even playing field is that it prevents Ontarians from seeing (1) the persistence of Christian privilege in Ontarian public culture and institutional life, and, (2) the adverse effects of closed secularism and “neutral secular” constructs.[214] The inability to see the structural religious advantages and disadvantages[215] – or “systemic faithism” – that this sustains and engenders may in part explain the frequency with which religious accommodations are popularly denounced as providing “special privileges” to minority creed practitioners (instead of protecting their equality of opportunity to live according to their religious conscience by accounting for this uneven playing field).

Due to the close connections between religion, ethnicity and race in the Ontario context – where many religious minorities also belong to ethnic and racial minority groups – this structural religious disadvantaging may increasingly take on racial dimensions.[216] Some scholars also argue that not acknowledging or addressing systemic faithism could lead to increasing community polarization, alienation and radicalization[217] within minority creed communities, with all that this entails for the mainstream, as observed in other jurisdictions.[218] It may well be that this point in time is one of those moments, recurrent in Canadian history, calling for an expansion of the “inclusive circle” as John Ralston Saul terms it, drawing on Aboriginal Canadian cultural foundations – “an inclusive circle that expands and gradually adapts as new people join us.”[219]

2. 1. Principles of statutory construction and interpretation

Some of the main arguments for not limiting the OHRC policy definition of creed to religion are derived from principles of statutory construction and interpretation. Among those discussed below include:

• Presumption against tautology
• Presumption of consistency
• Avoiding logical absurdities
• Equal standing of French and English language version of the Code
• Interpretation consistent with the Charter.

2.1.1 Presumption against tautology and of consistent expression

One key aid to considering the statutory interpretation of the meaning of creed in the Code is the “presumption against tautology.” This presumption assumes that the legislature has carefully chosen each word of a statute so it will not be confused with other similar words, or be redundant or superfluous.[240] Similarly, the “presumption of consistent expression” assumes that the legislature uses language carefully and consistently so that identical words in a statute have the same meaning and different words have different meanings.[241]

However, there are some exceptions to these rules, both in the case of the presumption of consistency and the presumption against tautology.[242]

Statutes from other jurisdictions within Canada that deal with similar subject matter can also be considered as an aid to statutory interpretation. [243] For example, in B. v. Ontario (Human Rights Commission), the Supreme Court noted, in the context of interpreting the meaning of the ground of marital status in Ontario: “we agree that statutory language from other jurisdictions may aid in the interpretation process…”[244] The Court was considering the impact of the definition of marital status under Saskatchewan’s human rights legislation, which expressly excluded the particular identity of a person’s spouse from the ground of marital status (while Ontario’s Code does not). The Court said: “the express exclusion of particular identity in the Saskatchewan Code and the absence of that exclusion in the Ontario Code lends itself more easily to the conclusion that the broader meaning of status was, in fact, intended in Ontario.”[245] In other words, the fact that the Saskatchewan Code defined marital status differently than Ontario’s Code weighed in favour of a conclusion that the Ontario Code intended something different.

The Ontario Code prohibits discrimination based on creed, but does not list religion as a prohibited ground. The word “religion” does not appear in the Code. However, the word “religious” is used in sections that deal with statutory defences for special interest organizations (s.18) and special employment (s. 24). In addition to creed, the terms “religion,” “religious belief” or “religious creed,” and “political belief” appear in other Canadian human rights statutes (see Figure 3 below, listing creed-related terms in use around the country, as affirmed in human rights statutes and/or case law).

Figure 3: Creed-related prohibited grounds of discrimination in human rights legislation and case law

Note: Dates refer to first year enacted, not to terms in existence at that time.

Research into interpreting such varied terms used across the country found that, much as in Ontario, there are very few definitions in statutes, policies and case law. Exceptions are the definition of religion (drawing on Syndicat Northcrest v. Amselem,[247] and P.E.I.’s definition of “political belief” as referring only to beliefs of parties as defined in their Elections Act. In Wali v. Jace Holdings Ltd.[248], the British Columbia Human Rights Tribunal grappled with the definition of political belief. It suggested that not just any political belief would be covered, but rather beliefs in respect of a system of “social cooperation”. It found that the applicant had experienced discrimination based on his political beliefs, because he was dismissed in part because of his personal political position on the regulation of pharmacy technicians by the College of Pharmacists.[249]

Applying the aids to statutory interpretation discussed above, it may be argued that the terms religion and creed mean different things in Ontario and Canadian human rights law, since:

1. Creed, instead of religion, appears in the Ontario Code
2. The terms creed and religion were both known to the Ontario Legislature at the time the Code was drafted, but creed was chosen
3. Other human rights statutes use religion, religious creed and, even both religion and creed.

2.1.2 Avoiding logical absurdities

The principle of avoiding logical absurdities and absurd consequences when trying to resolve cases of statutory ambiguity may arguably be another relevant aid to statutory interpretation.[250] While some scholars have noted the potential for absurdity, it is by no means clear that this interpretative principle provides much help in interpreting the meaning of creed.

Labchuck (2012) and Szytbel (2012) suggest that one absurdity that may result from confining creed protections to religion is that nearly identical but differently sourced beliefs in ethical veganism will be protected differently.[251] Labchuck provides the example of four different types of ethical vegans:

1. A Jain follower, who is vegan for religious reasons
2. A practicing Christian who sees veganism as a religious duty
3. A Christian who is vegan, but is a vegan for secular moral reasons relating to animal welfare
4. An atheist who is an ethical vegan for strictly secular moral reasons.

Interpreting creed in a way that excludes secular beliefs, Labchuk argues, would result in the apparent logical absurdity of only extending human rights protection under the Code to the first two, even though they may all be equally committed to the same ethical vegan beliefs (or even members of the same organization).

Legal analysts have highlighted other possible logical absurdities, inconsistencies and exclusions that inevitably result from any effort to universally define, and delimit for the purposes of law, what constitutes a religion.[252] Others have pointed to further logical contradictions in the OHRC’s (1996) Policy definition of creed as excluding “secular, moral or ethical beliefs.” This appears to suggest that both secular and moral or ethical beliefs more generally are excluded from protection. Critics argue that divorcing religious beliefs (which are protected) from “moral or ethical beliefs” or “political beliefs” for that matter (both of which are not protected according to the wording of the policy) is illogical since morals and ethics are often derived from religion, among other potential sources (including secular ones).[253]

2.1.3 Equal standing of French and English language versions of the Code

Another principle of statutory interpretation is the equal standing and regard that must be given to both the English and French language version of the Code in determining its appropriate interpretation. When interpreting a bilingual statute, the first step is to search for the shared meaning of the English and French versions; in this case, “creed” and “la croyance.” Second, it is necessary to determine whether the shared meaning is consistent with Parliament’s intent.[254] If one language version gives better effect to the purpose of the Code, that version should be selected, even if a narrower meaning would be common to both versions.[255]

The French language version of the Ontario Human Rights Code uses “la croyance.” This term is often translated into English as “belief,” rather than more narrowly as “religion,” suggesting the potential for a broader interpretation of creed beyond religion, as affirmed by the HRTO in R.C. v. District School Board of Niagara. [256]

2.1.4 Interpreting the Code consistently with the Charter

Proponents of expanding the definition of creed beyond religion argue that the Code should be interpreted harmoniously with Section 2(a) of the Charter, which includes both freedom of religion and freedom of conscience. The OHRC’s review of the case law on freedom of conscience reveals that although there has been no majority decision where the Supreme Court has defined “freedom of conscience” as distinct from “freedom of religion,” the courts have generally interpreted conscience in ways that encompass conscientiously-held non-religious beliefs, whether grounded in “‘secular morality,”[257] the positions of “atheists, agnostics, sceptics and the unconcerned,”[258] or “profoundly personal beliefs that govern one's perception of oneself, humankind, nature and, in some cases, a higher or different order of being.”[259]

For example, in Roach v Canada (Minister of State for Multiculturalism and Culture), [260] Charles Roach, the claimant, unsuccessfully challenged the requirement that new citizens declare an oath or affirmation of allegiance to the Monarch, on the basis that it would violate his freedom of conscience under section 2(a) of the Charter. In his decision, Linden, JA distinguished between freedom of conscience and freedom of religion:

It seems…that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under para. 2(a) of the Charter...However, as Madame Justice Wilson indicated, "conscience" and "religion" have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by para 2(b)[freedom of expression]. (Emphasis added; see also Justice Wilson’s concurring decision in R. v Morgentaler[261]).

Given the overlapping objectives of the Charter and the Code, and the fully (versus quasi) constitutional status of the Charter, some argue, citing Human Rights Tribunal of Ontario (HRTO) and court decisions,[262] that interpretations of the Code, particularly in cases of statutory ambiguity, should be made congruent with the interpretations, values and terms of the Charter. This was recently affirmed in an October 9, 2012 HRTO decision in McKenzie v. Isla, where the Vice-chair stated:

The Tribunal has emphasized that ambiguity in the scope of Code rights should be resolved in favour of protecting matters at the core of the rights and freedoms in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”).[263]

Labchuck and Chiodo argue that including secular moral and ethical beliefs under “creed” in the Code is consistent with giving full effect to the more fundamental right to freedom of religion and conscience under Section 2(a) of the Charter.[264]

At the same time, the extent that the aims and purposes of ”equality” jurisprudence under the Code ground of creed are, or should be, consistent with the aims and purposes of liberty jurisprudence under section 2(a) of the Charter remains a contested point. Some scholars caution against “Charter imperialism”[265] and the conflation of these two distinct purposes and analyses in recent court decisions. In Freitag v.Penetanguishene (Town) 2013 HRTO 893 (CanLII), the Tribunal clearly distinguished between Charter and Code protections for religion and creed in its decision.[266]

One could also argue that the Code’s anti-discrimination provisions on the ground of creed bear a closer relationship to, and are therefore best compared and harmonized with, the Charter right under Section 15(1) to “equality before and under the law...without discrimination based on...religion.”[267] Notably absent, in such Charter s.15 provisions, are matters of conscience and belief extending beyond religion, from which one could argue interpretations of the Code should take their cue.[268] The OHRC is not aware of conscience being recognized as an analogous ground.

The OHRC’s 1996 Policy on creed states: “Freedom of religion is the basic principle that informs the right to equal treatment under the Code on the ground of creed” (p.5). In an accompanying endnote, it derives this interpretation from a reading of the Code’s Preamble.[269] Much appears to hinge on how one interprets the purpose of the Code, in particular how one balances the overlapping goals of protecting individual dignity and broader social purposes such as creating a “climate of mutual respect” and advancing “equal rights and opportunities without discrimination.”[270] While the language of the Preamble is clearly central in this consideration, the courts have made it clear that one must also consider how the higher courts have interpreted the purposes of human rights statutes across jurisdictions in the case law.[271]

2.1.5 Liberal and purposive interpretation of the Code

Some legal analysts and scholars argue that including secular ethical and moral beliefs for human rights protection under the Code ground of creed is most consistent with a liberal and purposive reading of the Code, as called for by its ”quasi-constitutional” status.[272] They cite supporting court decisions affirming that:

1. Human rights legislation should be given a liberal and purposive interpretation, in keeping with its quasi-constitutional status[273]
2. Perceived ambiguities (such as the scope of the definition of creed) should be resolved in a way that promotes the anti-discriminatory goals of the legislation.[274]

Mindful of the progressive function and mandate of the OHRC,[275] some analysts argue that is entirely within the spirit and mandate of the Code and OHRC to help to “ensure that similar beliefs are granted similar degrees of protection – regardless of whether they are rooted in religion or a secular basis.”[276]

This view finds support in the HRTO’s (2013) decision on whether atheism counts as a creed protected by the Human Rights Code, in which the adjudicator, Associate Chair David Wright, conclusively found in the applicant’s favour that ”a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’ includes atheism and that discrimination because a person is atheist is prohibited by the Code.”[277]

2.2 Social trends: secularization and the evolving nature of beliefs

“I think there is a strong argument for creed going beyond religion when you’ve got similar beliefs occupying a place of similar importance for non-religious persons.”
– March 2012 Legal Workshop participant

”[T]he distinction [between religious creeds, which receive full Code protection, and secular moral or ethical belief systems, which do not] appears to many observers to be arbitrary, and implies that familiar or favoured creeds are “real” beliefs, while different or new creeds are not beliefs or are only pseudo-beliefs”.[278]

Another main argument for expanding the definition of creed to include secular ethical and moral beliefs concerns transformations in society and belief in the contemporary era. How people make sense and meaning of their lives and the world today has changed significantly in the modern era,[279] particularly since the 1960s. Observers argue that religion is no longer the only, or primary, arbiter of morality and identity, but rather one among many others in the contemporary era. These observers think it is particularly important to equally recognize religious and non-religious bases for belief and moral action in the current social environment of diversifying and individualizing belief systems, declining significance and centrality of religion for, and the growing numbers of people professing deeply held non-religious beliefs (as explored in Background Section III above).

The idea that only religions have a deep social or communal basis, or anchoring in social relations of inequality (thus uniquely meriting protection and remedying under the Code) was also contested. One Legal Workshop participant argued, noting similarities between deeply held secular and religious beliefs and matters of conscience:

If you think about things that overlap but are not identical, you get to those deeply held beliefs that cannot be changed – or only at deeply personal cost. We’re not here to protect the frivolous. We’re here to protect the marginalized, and atheists and pacifists have historically been marginalized in our society.

Others, including some religion studies scholars, argued that distinctions between religious and non-religious beliefs and practices are fast blurring, as exemplified in the increasing individualism and fluidity of religious and non-religious belief, identity and affiliation, and declining importance and significance of stable and enduring forms of community. “Secular beliefs may play a fundamental role in a believer’s life that is nearly indistinguishable from the role religion plays in the lives of others,” Labchuck also argues, pointing to the difficulty of drawing a “hard and fast boundary between religious and other beliefs.” She argues:

Both refer to orienting commitments that help give meaning and direction to life. Secular beliefs may be the ethical and moral equivalent of religious beliefs. They may play an equally or more profound role in the lives of believers than religion plays in the lives of those who attend church but may pay mere lip service to the ideals preached at their place of worship.[280]

“Recognizing that non-religious viewpoints can also constitute comprehensive claims to the truth,” and function in ways very similar to religion, Chiodo further argues, may help “change our perspective on many [secular] worldviews that are incorrectly perceived as neutral”.[281]

While many argued that extending creed protections to non-religious beliefs was simply a sensible or good thing to do given current social trends, others offered a stronger legal onus to do so. Some argued that the principle of interpreting the Code liberally and purposively, in keeping with its quasi-constitutional status, assumes that the courts will interpret human rights organically and progressively in accord with such evolving social trends, values and conceptions within society. [282]

2.2.1 Leaving creed definition open-ended allows us to adapt anti-discrimination legislation to evolving trends in society

“Beginning a court proceeding on the basis of a distinction between legitimate and illegitimate belief is an offensive way to start a court process.”
– January 2012 OHRC Policy Dialogue participant

The OHRC heard many arguments for leaving the definition of creed open-ended – neither continuing to commit to the existing closed definition of creed as religion, nor positively stating what other kinds of (non-religious) beliefs may qualify for human rights protection. People argued that leaving the definition of creed open-ended – but with some threshold criteria as already determined by the courts – will enable rights protections to adapt and evolve in tune with emerging societal developments, patterns of inequality and discrimination, and the evolving and dynamic nature of belief and practice in the modern era. Some argued that not defining creed will also free persons of various minority beliefs and faiths – e.g. practitioners of Aboriginal spirituality – from having to force fit their beliefs and practices into a predefined, and for some, alien, western categorical mold (such as religion).[283]

In his (2012) paper for the January 2012 OHRC Policy Dialogue, “Trying to Put an Ocean in a Paper Cup: An Argument for the Un-definition of Religion,” Howard Kislowicz argues that “because the lived religious experiences of individuals and communities are so diverse” and continually evolving, “a more appropriate response may be to refuse to adopt a comprehensive, a priori definition of religion altogether,” to avoid having the ironic impact of stifling religious freedom in its name.[284]

The same could be said about creed. Kislowicz ultimately argues for “keeping with the common law approach of dealing with cases as they arise”[285], based on contextual analogical reasoning (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”) rather than opting for abstract definition. Reasoning by analogy, he argued, is already an embedded principle in law and thus should not be feared.

2.3 Consistency with domestic and international law and jurisprudence

2.3.1 International human rights law

People arguing for an expanded definition of creed that includes secular ethical and moral beliefs cite domestic and international human rights case law and jurisprudence to support their position. Though not legally binding unless implemented by statute, international human rights laws and instruments set standards for domestic human rights law and policy. They can and have been explicitly cited by domestic courts to guide legal decision making, particularly when there is ambiguity about appropriately interpreting a domestic human rights statute. [286]

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Bundling together the rights to freedom of thought, conscience, religion and belief in international law – also done in the International Covenant of Civil and Political Rights (ICCPR),1966[287] and the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981,[288] to which Canada is a signatory – can be interpreted to suggest that national legislation (as called for in Article 7 of the Declaration)[289] as well as provincial human rights statutes should extend this same breadth of rights.[290] Also, international human rights law and resolutions show a hesitancy to single out or distinguish between differing kinds of belief systems warranting protection, or to override subjective definitions of these.[291]

The HRTO explicitly affirmed the relevance of international human rights law and jurisprudence, in these respects, in R.C. v. District School Board of Niagara.[292]

In addition to noting such trends in international law, advocates for including non-religious beliefs within the scope of Code protections point to examples in other jurisdictions around the world. For instance, England protects “religion and belief” as prohibited grounds of discrimination in their Equality Act 2010, following the European Convention on Human Rights (ECHR, Article 9, 14) and international law (see section 4.1 below).[293] New Zealand and some U.S. states also extend protections to non-religious belief systems, such as ethical veganism.[294]

2.3.2 Domestic case law

While much Code-based case law continues to equate creed with religion (as discussed earlier), there are notable exceptions to this trend. Various cases have affirmed or left open the possibility that non-religious belief may constitute a creed under the Code. Indeed, overall, the courts appear to be reluctant to offer any final, authoritative, definitive or closed definition of creed. Instead, they prefer a more organic, analogical[295] case-by-case assessment, which has yielded a variety of results (see Creed case law review).

Courts and tribunals have had no difficulty recognizing a wide variety of subjectively defined religious and spiritual beliefs within the meaning of the Code, including Aboriginal spiritual practices,[296] Wiccans,[297] Hutterian Bretheren,[298] Raelians,[299] Falun Gong practitioners, [300] and members of the Worldwide Church of God[301] and Rocky Mountain Mystery School.[302] More importantly, there is nothing in the case law that would prohibit redefining creed more broadly to include secular ethical and moral beliefs. However, there are guidelines around the outer limits of what the courts will recognize under creed (see threshold criteria section below).

Among the notable case law examples where a broader definition of creed is contemplated by decision-makers is R.C. v. District School Board of Niagara,[303] and

Hendrickson Spring Stratford Operations v USWA, Local 8773. In the latter case, the decision-maker held that:

The term ”creed” in the [Human Rights] Code has a wide meaning and can “be taken to include almost any belief system that encompasses a set of particular religious beliefs but, as well, many other philosophical, secular and personal beliefs – the ”isms” (such as are bound up in words like ”environmentalism,” ”conservatism,” “liberalism” or “socialism”).[304]

In Rand v. Sealy Eastern Ltd., the Tribunal also contemplated the possibility of including non-religious beliefs, favourably citing Webster’s New International Dictionary definition of creed as “sometimes a summary of principles or a set of opinions professed or adhered to in science or politics.”[305]

In another formative 1998 decision, Jazairi v Ontario (Human Rights Commission), [306] the Ontario Divisional Court upheld the OHRC’s decision not to refer a complaint to a Board of Inquiry because “political opinions on a single issue” – in this case the claimant’s views on the matter of the Israel-Palestine conflict – did not amount to a creed under the Code. However, the Court acknowledged that there was a diversity of dictionary definitions of creed, some of which included secular belief systems.[307] The Divisional Court stated that although the term creed is capable of including a comprehensive set of principles, its ordinary meaning requires an element of religious belief. However, the Court went on to explicitly not rule out the possibility that a “political perspective, such as communism, made up of a recognizable cohesive belief system or structure,” could amount to a creed, though this question did not need to be decided in this case.[308] The Ontario Court of Appeal upheld the decision. It confirmed the importance of assessing each creed claim on its own facts and noted that whether or not some other political perspective that is made up of a cohesive belief system could amount to a “creed” was not before it. The Court of Appeal commented that it would be a mistake to deal with such important issues in the abstract.[309]

The tendency in several decisions to not rule on the definition of creed, and instead jump to a prima facie discrimination analysis on the assumption that the belief or practice in question could be a creed, may be one indication of the courts’ reluctance to define creed formally.[310]

Religion is more clearly defined in Canadian case law. The leading Supreme Court of Canada decision interpreting what is meant by “religion” is the decision in Amselem The court adopted a broad definition of religion stating:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.[311]

Amselem clearly states that when dealing with religious freedom, only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected under the Quebec or Canadian Charter.[312]

The Court in Amselem went on to note that the content of an individual’s right to freedom of religion under the Charter is expansive and revolves around the notion of personal choice and individual autonomy and freedom. Some argue that, given the courts’ emphasis on personal choice and individual autonomy as the key underlying value and rationale for according rights to religion, there is no reason not to extend such rights to other kinds of beliefs (including beliefs of one), in the name of those very same values. Others further argue that the emphasis in Amselem and later decisions on the individual and subjective nature of religion – which downplay its distinctive communal, associational aspects – have blurred the lines between religion, creed and individual conscience, making the distinction between religious and non-religious convictions “increasingly hard to justify.”[313] Moon argues, “The focus on individual belief raises the question of why religious beliefs should be treated differently from other beliefs[?]”[314]

3.1 Equality focus and purpose of human rights legislation

Many of the arguments heard to date by the OHRC in support of maintaining the current definition of creed as “religion” revolve around anxieties about potentially “watering down” the purpose and focus of human rights legislation. Proponents of this view reminded us of the importance of returning to the original purpose of human rights protections when considering the question of definition. For instance, people argued that the main purpose of human rights legislation is to combat discrimination that is based on, and reproduces, social inequality, social exclusion and historical disadvantage faced by vulnerable, marginalized groups in society. One participant at the Legal Workshop commented:

I don’t want to water this down so that people in power who enjoy privilege use this to protect the power they already have. We want to be open, but not to the extent that we take the prohibited grounds to apply to everyone and anyone...If you water down the policy [definition], you put yourself on a slippery slope of having to deal with issues for which Human Rights Codes were not intended. Then, you will no longer have a vehicle to protect and promote the rights of marginalized, vulnerable identifiable groups.[315]

Proponents of this view tended to emphasize the group basis of social disadvantage and stereotyping faced by existing Code-protected groups, as a key condition of their protection under the Code. They argued that the move in recent human rights jurisprudence away from abstract formal analyses of prima facie discrimination –centering on human dignity or comparator group analyses – towards more contextual and purposive understandings of discrimination, mindful of social and historical relations of power and inequality, provides some support for this view.[316]

However, one could argue that not all religious communities currently covered by the Code ground of creed are socially disadvantaged. In fact, as discussed earlier in the background section, some religious communities may have structural advantages and privileges in Ontario society, at least in certain respects. In any case, if the OHRC expands its policy definition of creed, cases brought before the courts and HRTO would still need to meet the test of prima facie discrimination, which may consider past or present social disadvantage and sensitivity to contexts of social inequality.[317]

Some legal scholars emphasize a distinction between the goal of equality rights legislation (for example, protecting against discrimination based on creed under the Code), and the goal of liberty rights legislation (for example, protecting freedom of religion under section 2(a) of the Charter).[318] The former, they argue, addresses social and historic disadvantage and inequality, necessarily assessing broader social dynamics of power and inequity in its effort to prohibit and remedy discrimination and unequal treatment.[319] The latter tends to put more emphasis on the right of individuals to be free from state coercion or interference in matters of religion and conscience,[320] regardless of whether such interference or coercion is based on social inequality or group disadvantage or stereotyping.

While the courts have recognized an equality dimension to freedom of religion under the Charter, [321] some legal scholars note the disproportionate weight accorded to the liberty dimension in s. 2(a) jurisprudence.[322] Taking issue with the tendency of the higher courts to conflate and confuse equality rights relating to creed and religion under the Code and s.15 of the Charter with religious freedom rights under s.2(a) of the Charter, Ryder, among others, emphasized the importance of distinguishing between the two overlapping but distinct aims of these laws, advising the OHRC to keep the unique purposes of human rights legislation in view when assessing policy options for defining creed.[323]

3.2 Uniqueness of religion merits distinct protections

Others argue that religion is distinct from other kinds of belief systems, and that to fail to distinguish between, for instance, political and ethical beliefs, conscience and religion, is a categorical error and potentially a legal one, since different kinds of belief warrant different kinds of legal protections (e.g. freedom of expression versus freedom of religion versus freedom of conscience), in accord with their unique status and functioning in the lives of individuals. One participant at the Legal Workshop, warned of the danger of trying to “fit square pegs into round holes”:

A few distinctions may help us. There is a long tradition of protecting religions as collectives, as institutional forces in our society. The new [square] pegs are these new forms of identity – there is an individual autonomy that is different from the collective aspect of religions. That is why they should be seen as differently.

This collective dimension of religion and creed has been discussed in legal decisions.[324] For instance, in 407 ETR Concession Company v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, a labour Arbitrator states: “A creed implies some level of association between those of like mind. It contemplates a set of shared beliefs. It implies some professed system of faith.”[325] In his dissenting judgement in Hutterian Brethren,[326] Justice LeBel also emphasized the importance of recognizing the communal and collective aspect of religion:

[Freedom of religion] incorporates a right to establish and maintain a community of faith that shares a common understanding… Religion is about religious beliefs, but also about religious relationships… [This case] raises issues… about the maintenance of communities of faith”.[327]

Chief Justice McLachlin, in her majority decision, and Justice Rosalie Abella also accepted that religious freedom has both individual and collective aspects. However, Chief Justice McLachlin rejected the view that that the community impact transformed the essential claim of the Colony – that of the individual claimants for photo‑free licences – into an assertion of a group right.

The 1996 Policy similarly recognizes this group aspect of religion in speaking about the need to assess and accommodate the “needs of the religious group to which an individual belongs” (see section V subsection 3.2 for further discussion on “the needs of the group”).[328] This is consistent with s. 11 of the Code, dealing with constructive discrimination, which also refers to the needs of the group of which the individual is a member.

Many legal scholars have taken issue with the erasure of this communal dimension of religion in the Charter s. 2(a) freedom of religion jurisprudence, particularly since Amselem.[329] For example, Moon observes:

The particular significance of religious practice to the individual must rest in part on its collective character – that a practice such as residing in a succah connects the individual to a community of believers and is part of a shared system of norms...[R]eligious accommodation may be motivated at least in part by a desire to avoid the marginalization of identity groups [330]

Others pointed to other ways that religion (as opposed to other kinds of beliefs) is unique and distinct in ways meriting special legal consideration and protection of its own particular kind. For instance, some people highlighted the depth and comprehensiveness of religious commitment, and the absolute and transcendent nature of its truth claims, which by definition can pose unique challenges to the authority of the liberal state in ways that are not similar to other kinds of (less encompassing or absolute) beliefs.[331]

3.3 Distinction between rights based on conscience and religion and existing protections irrespective of belief

We also heard from several people that matters of “religion” should be distinguished from matters of ”conscience,” in part for the reasons discussed earlier. Warning about the dangers of conflating these interconnected but distinct phenomena under a single category of “creed,” one participant argued:

We know from the history of religion that there is an inherent group component – identifying with religion means identifying with a group and set of internal permissions that one negotiates...I see conscience as an individual element of religion. I may have a dispute with members of a religious group, and rely on my conscience. Conscience can be the antithesis to a religious belief. I’m increasingly persuaded that the new religions should be under conscience rather than religion.

The same participant went on to explain how two different types of legal rights protections – one, a negative right (freedom from coercion), the other a positive right (implying a duty to accommodate) – may not necessarily apply equally to both kinds of beliefs. He observed:

We have less trouble saying people shouldn’t be coerced with conscience, but it is more complicated with accommodation. Ethical veganism is a good case – it is more about conscience than membership in community, but for accommodation...Should conscience be accommodated the same way as religion? This is an important question, and a hard question.

Some held that the existing 1996 OHRC Policy already extended sufficient (albeit negative, i.e. “freedom from”) rights to persons with non-religious creeds. For instance, this policy states:

It is the OHRC's position that every person has the right to be free from discriminatory or harassing behaviour that is based on religion or which arises because the person who is the target of the behaviour does not share the same faith. This principle extends to situations where the person who is the target of such behaviour has no religious beliefs whatsoever, including atheists and agnostics who may, in these circumstances, benefit from the protection set out in the Code.[332]

This brings within the scope of human rights protection situations where individuals are harassed, or face other discriminatory treatment for not having a particular creed or religious belief (e.g. for being non-religious, atheist, agnostic or secular humanist), and/or where a person of religious faith imposes their faith in some way on a person who does not share that faith, regardless of what their beliefs are.[333] It may not, however, impose on organizations any positive duty to accommodate persons with deeply held non-religious beliefs. Some argue that this restriction of the duty to accommodate is justifiable, since it flows, in large part, from society’s recognition of an unequal (social, institutional, structural) playing field for “minority group” members (thus ruling out accommodations for people not facing such constructive forms of disadvantage). Of course, non-religious creed group members may also face group disadvantage (as explored above).

Noting the distinction between religion and conscience in section 2(a) Charter case law (see section 2.1.4 above), some argued that rather than expanding the scope of creed through policy development, the OHRC should advocate for the Legislature to add “conscience” to the Code, if indeed it believes a broader range of individual beliefs should be included within the scope of its protections. This would enable two separate and distinct streams of jurisprudence (the right to be free from discrimination based on creed and the right to be free from discrimination based on conscience) to be maintained. To not do this, some argued, would be tantamount to mixing apples and oranges under a single confused (“creed”) category, which could lead to decision makers simply overlooking the OHRC’s policy, due to its potential to run against the grain of judicial interpretation.

3.4 Floodgate and impact arguments

The OHRC also often heard “floodgate”-type arguments – if the policy widens the definition of creed, organizations governed by the Code will be flooded and overcome with demands to accommodate all manner of sincerely held beliefs, compromising their ability to function and fulfill their essential purpose.[334] Concerns about potentially having to deal with a flood of creed claims were at times connected to organizational anxieties around having only a “subjective-sincerity” test to hold back such claims.

Others drew attention to the much broader jurisdiction of the Code, as compared to the Charter, and the potential significant impact that bringing matters of individual conscience (currently governed by the Charter which applies only to government) under the Code could have for Ontario organizations. One policy dialogue participant concluded: “Creed analysis under the Code should not be unthinkingly borrowing from the Charter when the impact of the Code is so much greater with employers and citizens than the Charter.”[335]

Some would nevertheless challenge the idea that opening up the definition of creed beyond religion in an OHRC policy will necessarily lead to an avalanche of frivolous claims. There is already ample scope for a multitude of (in some cases frivolous and vexatious) claims based on religion in current law, due to the broad and subjective definition of religion in Amselem.[336] As well, the current policy definition of creed has not prevented claims from being advanced at the HRTO under the ground of creed by people who would not likely fall within the current policy definition.

Furthermore, while OHRC policies are considered persuasive and often given great weight by the HRTO and courts, a change to the policy would not necessarily bind decision makers in individual cases. In any case, from a human rights perspective, withholding current human rights and accommodations based on prospective future challenges (e.g. anticipation of future undue hardship) is not a legally defensible position. Undue hardship analyses in accommodation cases, for instance, must proceed based on current (empirically demonstrable) organizational realities and constraints.

3.5 Legislative intent

Principles of statutory interpretation affirm that the intention of the legislature is a factor in interpreting legislation,[337] as is “[t]he legislative evolution and history of a provision”.[338] The OHRC heard anecdotal evidence based on an oral interview with a leading human rights activist around at the time of the Code’s creation, that only religious creeds were contemplated by Parliament when it introduced creed as a ground of human rights protection in 1962. Others have suggested that the language of “creed” evolved out of the historically dominant Christian lexicon, and assumed religious meaning.[339]

Despite this, the OHRC need not be bound strictly by 1962 interpretations. The Code has since been updated many times since its 1962 enactment, most recently in 2008, and has not been amended to replace “creed” with “religion” or “religious creed”. As well, as noted earlier, human rights legislation has quasi-constitutional status. This means that human rights legislation is given a liberal and purposive interpretation, so it may better fulfill its objectives, with protected rights receiving a broad interpretation. However, as also earlier noted (see supra note 337), any such broad “interpretation of the text of the statute” should also be one “which respects the words chosen by Parliament.”[340]

Further, in responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation may be adapted to changing social conditions and also to evolving conceptions of human rights. According to Sullivan and Driedger:

Courts are bound to respect the meaning of words used by the legislature, but given the plastic character of language, especially the general language typically found in human rights codes, this constraint does not prevent the courts from taking a flexible and adaptive approach.

In practice, the Supreme Court of Canada has consistently taken a flexible and adaptive approach to the resolution of issues under human rights legislation. This is evident in the willingness of the court to adopt and develop novel concepts within the framework of these Acts. Although the new concepts may be loosely tied to particular provisions of the Act, the main justification for introducing them is that they accord with and tend to promote the general policies and goals of the Act.[341]

This liberal and purposive approach to interpreting the law is in evidence in the OHRC’s reading of gender identity, pregnancy and breastfeeding into the Code ground of sex, even though the legislation was initially silent on such inter-related grounds and concepts.

Looking at the history of the selection of “creed” as a prohibited ground of discrimination has been of limited assistance, as historical legal and archival research by the OHRC to date has been unable to definitively determine any precise operative definition of creed at the time of the term’s first appearance in the original Code in 1962. When the Human Rights Code was introduced in a bill on December 14, 1961 by the Hon W.K. Warrender, he emphasized that there were no new principles in the bill. The bill, he suggested, simply incorporated into the Human Rights Code various anti-discrimination Acts which the Ontario Legislature had already approved in the past.[342]

The OHRC’s own research into the legislative history of anti-discrimination statutes predating but later shaping the Human Rights Code revealed that in the initial draft of the first general anti-discrimination bill introduced to the Ontario Legislature on March 19, 1943, both “creed” and “religion” were listed alongside “race” as prohibited grounds of discrimination.[343] The bill, however, did not pass second reading on March 23, 1943.[344] When another anti-discrimination bill more narrowly prohibiting discriminatory publications and display (leading to the Racial Discrimination Act) was introduced a year later on March 3, 1944, it passed all three readings.[345] The final version of the Racial Discrimination Act given royal assent March 14th, 1944 prohibited discriminatory publications and displays “for any purpose because of the race or creed of such person or class of persons.” Notably absent in the final draft of this key Act predating the Code was “religion” as an independent ground distinct from “creed.” While it is clear that creed included religion in the Racial Discrimination Act, the reason for moving from religion and creed in the initial draft bill to just creed in the Racial Discrimination Act is not discussed in the archival records researched by the OHRC.[346]

Whatever policy definition is eventually adopted, leaving the definition of creed completely open-ended, without any threshold criteria, could impose too onerous a burden on Ontario organizations to determine what constitutes a creed meriting protection under the Code. It would also fail to recognize the few limits and guidelines that have been set out in existing case law. Even those, such as the Ontario Humanist Society, arguing for an expanded definition of creed acknowledged that such protections should extend, not just to any belief or opinion, but to “a substantial belief system akin to the beliefs or tenets of a religion,” which, “influences the way you live.”[347]

The OHRC’s (2012) Creed case law review notes that, while creed is defined subjectively, there are also necessary objective elements to a creed claim (see Section V 3.3 for more on these elements). For example, accommodation providers may be within their right to seek evidence of the existence of a particular and cohesive system of belief, and its sincere observance. For newer or less understood creeds, this may be shown by using expert evidence (see for example Huang v. 1233065 Ontario[348] and Re O.P.S.E.U. and Forer[349]). The decisions in Jazairi[350] and, in the context of section 2(a) conscience rights, Roach [351] also exclude isolated political opinions from creed and conscience protections. These decisions, however, do not preclude the possibility of political beliefs being connected to a broader and deeper cohesive moral or ethical belief system that does warrant legal protection, as contemplated by the Court in Jazairi.

Some argue that when thinking about the nature and scope of non-religious beliefs potentially meriting protection under an expanded creed category in the Code, the OHRC and courts should look to the threshold and framework of analysis already elaborated by the courts in the context of the section 2(a) right to freedom of religion.[352] Potential criteria include that the conscientiously-held belief (irrespective of whether it is connected to the religious or divine):

• Be sincere[353]
• Be “freely and deeply held” and “integrally linked to one’s self-definition and... fulfilment”[354]
• Be part of a comprehensive moral or ethical worldview[355]
• Consist of an “overarching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans”[356]
• Bear some nexus to the official doctrine of an organization or community, although the beliefs or practices do not have to be required by such a doctrine.[357]

While such threshold criteria for what could constitute a creed under the Code would “filter out a considerable number of conscientious objector claims,” Chiodo argues, “this is as it should be: religion is protected because it presents an alternative authority to that of the state, commands an individual’s utmost loyalty, and pervades every aspect of his or her life.”[358] She argues that for claims of individual conscience and belief, or non-religious belief more generally, to merit the same protection as religion, they should meet the same requirements.

Political perspectives that are connected to more comprehensive moral or ethical worldviews, from the above expanded conditional perspective, could potentially constitute a creed, according to this analytical framework. Just how one would distinguish a political belief rooted in a broader belief system, however, poses challenges of its own. Principles of statutory interpretation – the presumption against tautology and of consistency – may pose another potential barrier to including political beliefs within the ambit of the meaning of creed under the Code (as discussed in section IV 2.1.1 above).

4.1 United Kingdom example: the Grainger test

The inclusion of “beliefs” of a non-religious nature, albeit with conditions, in British human rights law may be instructive for how the OHRC and courts might consider distinguishing beliefs meriting human rights protection. UK equality legislation, recently consolidated under the the Equality Act of 2010, explicitly prohibits discrimination based either on religious belief or on philosophical belief. For example, both veganism (in Hashman v. Milton Park)[359] and science-based belief systems (in Grainger Plc v Nicholson)[360] have been ruled to warrant protection under UK equal treatment legislation. Many belief systems have also been accepted under Article 9 of the European Convention on Human Rights (ECHR) [361] including pacifism, veganism, Scientology, the Moon sect, the Divine Light centrum, Druidism and Krishna consciousness.

Grainger Plc v Nicholson[362] is perhaps the most formative UK case offering criteria to assess beliefs meriting protection.[363] Nicholson, the plaintiff in this case, argued that his belief system on climate change was a philosophical and science-based one in line with the (2003) UK Employment Equality regulations pertaining to religion or belief, as well as legislation under the European Convention on Human Rights (article 9, protocol 1, article 2). In his ruling, Judge Burton held that a conviction in the existence of climate change was a protected belief under the legislation and that a belief could also be protected if it was founded on science, provided the belief system relates to a “substantial aspect of human life and behaviour,” and attains “a certain level of cogency, seriousness, cohesion and importance.”[364]

Grainger is a noteworthy case, because it established the Grainger test, which has since functioned as the main standard for assessing claimants’ rights to protection on the ground of belief. The Grainger test – as elaborated in a 2011 case (Hashman v Milton Park)[365] involving an ethical-vegan, anti-foxhunting activist who successfully claimed discriminatory termination of employment as a gardener as a consequence of his views – states that a philosophical belief system (distinct from a religious one) warrants protection as long as it fulfills certain conditions. These include that the philosophical belief system in question:

1. be genuinely held
2. be a belief system rather than a mere opinion or viewpoint based on the present state of information available[366]
3. be related to a weighty and substantial aspect of human life and behaviour
4. obtain a certain level of respect in a democratic society, by not being incompatible with human dignity or conflicting with the fundamental rights of others.[367]

The court in Hashman also referenced the case of Williamson,[368] where Lord Nichols specified that “the belief must also be coherent in the sense of being intelligible and capable of being understood”.[369] As long as these conditions are fulfilled, the courts also affirm in Granger and Hashman[370] that the belief system may be:

1. a one off belief (meaning that it does not have to be shared by others)
2. based on a political doctrine, or
3. based on science, e.g. Darwinism.

One could argue that since philosophical beliefs and religion do not share the same exact test, under the prohibited ground of religion or belief in the UK Equality Protection Act of 2010, one may prudently avoid conflating unique phenomena (for instance by those recommending distinguishing conscientiously held individual beliefs from religion), while at the same time holding out equal protection for both closely related grounds. The question here is whether two distinct tests (one for religion, one for conscientiously held individual beliefs) should be posited under a single expanded Code ground of creed, in this light, or a single one as suggested above by Chiodo.[371]

Some, in the UK context, have criticized the distinction in law between religious belief and philosophical belief as arbitrary and prone to potential abuse. They argue that this encourages a two-tiered approach where philosophical beliefs may in effect be more strictly scrutinized as ”mere opinions” compared to religious beliefs.[372] In its elaboration of the Grainger test in Hashman, the Court, nevertheless, clearly affirms that “these threshold requirements should not be set at a level which will deprive minority beliefs of the protection they are intended to have under the convention”.[373]

Extending Code protection to non-religious beliefs and practices could affect employers and other organizations in Ontario in many ways.[374]

This could, for instance, increase administrative challenges for employers and organizations in determining whether, and to what extent and in what respects, less well known ”beliefs” may merit legal protection. Challenges would extend beyond merely determining what is a creed, to also distinguishing and assessing core and peripheral aspects of little known beliefs and practices to determine appropriate potential accommodations. Organizations, and the courts in some instances, are already struggling to deal with claims of interference with religious and creed rights (including determining what counts as “creed” and ”religion” and what practices merit accommodation) under existing terms and interpretations of the Code and Charter, post Amselem.[375] Such struggles will likely expand if the definition of creed expands.

An expanded definition of creed could also increase the number and volume of creed claims brought forward, in organizations and at the Tribunal (in part merely as a consequence of the publicity that a change in interpretations of creed under the Code could generate). This could also expand the scope of organizations’ duty to accommodate creeds short of undue hardship, affecting organizational costs and effective organizational functioning (albeit short of undue hardship).[376] For example, a large organization may be asked to refurnish an office, change a uniform, food offerings, etc. to accommodate an ethical vegan’s deeply held aversion to the use of animal products, including leather.

Finally, the implications of applying statutory defences under Section 18 (special interest organizations) and Section 24 (special employment) would need to be carefully considered.

[374]  Such potential impacts are discussed in Chiodo’s (2012b) paper, “Conscience, Creed and the Code: Forthcoming Changes to the Ontario Human Rights Commission’s Policy on Creed.”

[375] See Chiodo, 2012b.

[376] Chiodo (2012b) is not overly concerned about this possibility, since she thinks most cases will continue to fail at the first prima facie stage of discrimination analysis, as is currently the case.

Court decisions such as “O’Malley”[384] have established that organizations governed by the Code have a duty to accommodate individuals’ creed observances up to the point of undue hardship, regardless of whether established organizational norms, standards, rules or requirements adversely affect creed adherents’ ability to follow the tenets of their creed by design, intent or simply effect. The courts have also affirmed that the claimant has the onus to first establish a prima facie claim of discrimination, before the onus shifts to the respondent to show that it has taken steps to accommodate to the point of undue hardship.

The duty to accommodate creed rights arises in contexts of “constructive discrimination,” also known as “adverse effect discrimination.” Under the heading of “constructive discrimination,” section 11(1) of the Code states:

A right of a person under Part I[385] is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances (emphasis added);

Section 11(2) immediately qualifies this “bona fide requirement” (BFR) defence for adverse effect discrimination by stating:

The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any (emphasis added).

For a requirement to be found reasonable and bona fide, the organization will have to show that it has accommodated creed observances to the point of undue hardship.

There nevertheless remain some questions and tensions in creed accommodation analyses. This section explores some of those tensions.

2.1 Prima facie discrimination and appropriateness analysis

Before assessing whether a creed accommodation is required and whether such accommodation would constitute an undue hardship for an organization, prima facie discrimination must first exist.

Courts have affirmed that people seeking accommodation must first establish that they have a prima facie claim of discrimination, and must show that:

1. They have a characteristic protected from discrimination under the Code
2. They experienced an adverse impact with respect to a service, employment etc.
3. The protected characteristic was a factor in the adverse impact. [386]

Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. For example, an organization can argue that it accommodated the needs of the person to the point of undue hardship. In Ontario, the Code states that the factors in assessing undue hardship are cost, outside sources of funding (if any) and health and safety.

Leaving aside the issue of undue hardship, is it always “appropriate” for a service with a transient public, such as a restaurant or bus service, to accommodate the potential wide variety of creed observances of its service-using public? Is undue hardship the only potential line of defence for not accommodating a bona fide creed observance, where an adverse impact can be shown? Or might there be another preliminary point of analysis having to do with the “appropriateness” of creed accommodations in particular service contexts, considering the essential nature of the service being offered?

For example, might it be defensibly argued that owing to the transient nature of the service clients, in specific contexts, it is reasonable and not discriminatory to not accommodate service users’ creed observances (depending on what they are), also in part because of the potential ability of service users to fulfill their creed observances elsewhere (in not unduly burdensome ways)?

If this is the case, it may help to develop guidelines outlining potential circumstances where this “appropriateness analysis” may arise, and the ingredients of such an analysis. This is something that may need to be considered in the policy update.

However, existing prima facie discrimination and undue hardship analyses may already provide sufficient tools to respond to these scenarios.

For example, with claims under section 2(a) of the Charter, the courts have determined that even where religious rights are triggered, not everything that interferes with them will constitute discrimination or an infringement of a right under the Charter. The Supreme Court has affirmed, in section 2(a) cases, that an interference with a religious right must go beyond the “trivial and insubstantial.” “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct.[387] While analyses of discrimination and human rights protections flowing from the Code are distinct from the Charter, decisions based on the Code have also distinguished between core and peripheral dimensions of rights meriting protection.

Some examples explored in the Creed case law review of decisions under the Charter and/or Code where a practice connected to a religion or creed was deemed not to warrant legal protection or a duty to accommodate include:

• Volunteer activities at church, in this case relating to staffing a fundraising day camp (HRTO held not protected under the Code in Eldary v. Songbirds Montessori School Inc.)[388]
• Social and community activities connected to religion (Hendrickson)[389]
• Installation of a satellite dish, against condominium bylaws, to receive international religious and cultural programming (deemed not to be a right sufficiently connected to creed in Assal v. Halifax Condominium Corp. No. 4)[390]
• Giving out religion-based gifts (pens with religious inscriptions)[391]
• Special leave to attend land claim selection meetings as a part of ancestral and religious duties.[392]

As part of assessing whether a right is infringed and warrants protection, organizations may need to look at the extent to which a person’s belief may allow for exceptions.[393] The case of Saadi v. Audmax[394] is particularly interesting on this point, as the Court distinguished between what was required by the faith (in this case relating to religious attire) and the rights claimant’s subjective ”style” preferences.[395]

2.2. Critiques of “accommodation” discourse and framework

“People don’t want to be accommodated or tolerated, but respected.” – January 2012 Policy Dialogue participant

Accommodation may be perceived as entailing the “granting of an exception” to a person or a group of persons upon whom a universal (facially neutral) rule would otherwise have a discriminatory effect on grounds prohibited by the Charter and/or Code. This notion of accommodation has been critiqued by advocates of a deeper equality for failing to go far enough – for not challenging the ”privileged norm” disadvantaging minorities in the first place, and instead only granting individuals an ”exception” to it.[396] Scholars contrast “accommodation”/“tolerance” approaches versus more radically pluralist “equality” approaches as competing frameworks for thinking about religious diversity in Canada.[397]

For example, Lori Beaman highlights the implicit hierarchies of belonging and “normalcy” that a discourse of “tolerance” and “accommodation” inevitably creates, “wherein majorities confer benefits on minorities” and unilaterally determine the limits (reasonableness) of this tolerance.[398] “My worry” she explains, “is that these terms fix us in place in a way that does not ever quite reach equality. They don’t force a rethinking of structural inequality in a way that laying bare difference and a requirement to achieve substantive equality may facilitate”.[399]

The term accommodation itself carries a power dynamic. We are discussing a policy that is trying to give people the freedom to be fully themselves, but discussed in a framework of power imbalance. I don’t have a solution, just observation, but I get a trigger every time I hear the word ‘accommodation.’” – January 2012 Policy Dialogue participant

2.3 Continuum of accommodation: from systemic to individual

There is nevertheless room and precedent within existing human rights law for a fuller and more transformative concept of accommodation that moves beyond exceptions towards scrutinizing the norm. Subsection 11(2) of the Code explicitly calls for inclusive design based on the “needs of the group” as the most appropriate first response to constructive discrimination, unless this creates undue hardship. Supreme Court of Canada jurisprudence also supports this.[400]

In a 2012 article, “Accommodation in the 21^st Century”, published by the Canadian Human Rights Commission, Brodsky, Day and Peters trace the legal evolution of a more proactive (versus “after the fact”), systemic (versus individual) and transformative (versus based on exceptions) approach to addressing constructive discrimination back to the landmark (1999) Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v BCGSEU ("Meiorin").[401] Before Meiorin, respondents were only required to make individual adjustments or exceptions to the rule in cases of adverse effect discrimination. There was no onus to justify the universal rule or standard. Recognizing the ways this approach was obstructing and undermining “the promise of substantive equality” in society called for under human rights legislation, Justice McLachlin (as she then was), writing for a unanimous Court, quoted the following passage with approval:

The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, able-bodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated.”

Accommodation, conceived this way, appears to be rooted in the formal model of equality. As a formula, different treatment for “different” people is merely the flip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness.

In this way, accommodation seems to allow formal equality to be the dominant paradigm, as long as some adjustments can be made, sometimes, to deal with unequal effects. Accommodation, conceived of in this way does not challenge deep-seated beliefs about the intrinsic superiority of such characteristics as mobility and sightedness. In short, accommodation is assimilationist. Its goal is to try to make “different” people fit into existing systems.[402]

She went on to state: “The right to be free from discrimination is reduced to a question of whether the ’mainstream‘ can afford to confer proper treatment on those adversely affected, within the confines of its existing formal standard. If it cannot, the edifice of systemic discrimination receives the law’s approval. This cannot be right.”[403]

The Supreme Court set out a new[404] analysis for justifying a bona fide requirement (or BFR), requiring respondents to review and inclusively redesign adversely impacting rules, qualifications or standards short of undue hardship. The Court pushed organizations to “build conceptions of equality into workplace standards” (and by extension services) themselves.[405] In this way, the focus of accommodation, at the outset, was quite radically shifted, from the individual adversely affected to the standard having the adverse impact.[406] To recap this legal implication of Meiorin: once a prima facie case of (adverse effect) discrimination has been successfully made out, organizations have a legal responsibility to explore a range of possible accommodation arrangements, including the possibility of beginning with what some have called “systemic accommodation”[407] (changing the standard for all). Only after this systemic accommodation has been shown to create undue hardship can an organization move on to examine possible individual accommodation arrangements short of undue hardship.

OHRC policies and guidelines also recommend that organizations design their programs, services and workplaces inclusively. Like systemic accommodation, the human rights ideal of “inclusive design” can force organizations to scrutinize and redesign established ways of doing things (status quo norms, rules and standards). Inclusive design need not be (indeed ideally is not) complaint-driven, or dependent on accommodation requests or claims of prima facie (adverse-effect) discrimination.

2.4 Accommodation and competing rights

There is often a need to consider the rights of others in creed accommodations (the rights of other Code protected groups, or general interests of society in public order, health, safety, democracy, etc.). Rights can and often do come into competition with one another, particularly on the ground of creed, as is explored in the OHRC’s Policy on competing human rights and The shadow of the law: Surveying the case law dealing with competing rights claims. The recognition in human rights law at all levels that the right to hold beliefs is broader than the right to act on those beliefs (religious or otherwise) is in large part in recognition of the potential impact of actions on others.[408]

Some of the more difficult contemporary competing rights cases have involved creed-based conscientious objections to providing services (e.g. abortion, same-sex marriage, women’s haircut) and/or to performing job functions while on the job (e.g. patient referral for abortion, serving alcohol, putting out a Christmas display). For how to best handle and think through such scenarios, the OHRC directs readers to the OHRC’s Policy on competing human rights, which outlines a framework for dealing with them. The policy affirms several key principles, including:

• There is no hierarchy of rights
• No right is absolute
• Context is critical
• Rights have core and peripheral dimensions, and rights balancing will tilt towards upholding rights that are infringed at their core
• Search for “constructive compromises”, “accommodations” and measures to minimize potential harm to each right.

While the notion of accommodation has been most developed in the context of disability, it is not new to creed. There are unique accommodation issues specific to creed that arise, in part due to the unique nature of religion and creed as a form and basis of social difference. Creed practices and observances, particularly those connected to religion, for instance, generally include collective dimensions and expressions, which can grate against the grain of widely accepted accommodation norms and principles (e.g. accommodation calls for an individualized assessment) honed in the context of disability (see Section V. 3.2 below for more in this regard).

This final section highlights accommodation issues and analyses unique to creed, and some of the points of tension and ambiguity that can surround such issues as determining sincerity of belief, the existence of a creed, and/or creed practices meriting human rights protection. It also looks at questions and challenges for accommodating collective expressions of creed.

3.1 Unique dimensions of creed: perspectives from the ground

One distinctive feature of creed as a human rights ground is its potential mutability – that is, its rooting in subjective belief and identity, in ways distinguishing creed from other Code grounds which are less subject to change (if not immutable). In part due to the mutability of creed and religion – its element of conscious choice versus involuntary ascription – some people feel it is fair game for intolerance. Drawing attention more specifically to how the chosen nature of religious belief can lead to resistance among individuals and organizations to accommodate creed, one presenter at the OHRC Policy Dialogue on Creed commented:

Religious accommodation is viewed differently than other types of accommodation. The attitude is that you ‘chose’ to do this, not that you need to do this. Yes—I chose this—but I also need it.[409]

Some take this logic further to argue that religion and creed should not have the same degree of legal protections as other grounds such as gender, race or sexual orientation, precisely because these latter forms of social difference are largely ascribed and involuntary, versus chosen[410] as in the case of creed. It is important to note that arguments that a person can avoid discrimination or intolerance by modifying their behaviours and making different choices has been clearly rejected as a justification for discriminatory behaviour (see most recently the Supreme Court of Canada decision in Quebec (Attorney General) v. A.[411] As well, see the OHRC’s Policy on competing human rights for more on the opposing position, largely upheld by the courts, that there is no such ”hierarchy of rights” in Canada.

Another presenter at the January 2012 Policy Dialogue pointed out how religious/creed beliefs may be more subject to questioning and hostility, and compared to other grounds, may more often conflict with or pose challenges to other peoples’ identities and beliefs. Cautioning against overlooking key differences between religion and disability in the sphere of accommodation, he observed:

In a social context, comparing disability and religion doesn’t always work because some people’s religions overtly challenge other people, for example, their sexual orientation... We also can not ignore the fact that some people hate other people’s religions… Other categories don’t always raise those same issues. It is for instance commonly agreed and accepted that we should make society accessible for people with disabilities. But with religion, it challenges peoples’ beliefs and people don’t always want to make that accommodation.[412]

3.2 Collective creed accommodations: accommodating the needs of the group

Another unique aspect of creed, and religion more specifically, is its collective dimension and potential form of expression.[413] It is a widely accepted human rights principle, particularly in disability contexts, that to achieve equality, accommodation may need to be individualized; that is based on individualized (case-by-case) assessments of individuals’ actual accommodation needs. Creed accommodations can pose challenges to this general principle, where there may be a need to accommodate acts of worship and ritual observances based on “the needs of the group.” One example would be accommodating congregational acts of worship, as recently seen in a Toronto area middle school.[414]

Some argued during consultations that accommodation, by definition, is necessarily individual in nature, and should not be extended to group observances or collective acts of worship (due to the potential to contravene individual rights and needs). However, the analysis above concerning “systemic accommodation” based on the needs of the group shows that accommodation need not be exclusively conceived as dealing only with individual needs. There are many examples, even in the disability context, where an accommodation arrangement may benefit an entire group (for example, calling out transit stops for persons with vision-related disabilities).

There nevertheless remain difficult questions that can arise in the effort to design inclusively in a way that does not privilege or disadvantage any particular member of the faith community. The current creed policy update will need to include guidance for organizations that need to accommodate a collective creed observance.

When faced with the possibility of designing and providing a collective creed accommodation, organizations need to consider points and principles such as:

• Maintain an environment free of compulsion in matters of religion and belief[415]
• Equally respect and accommodate differing belief orientations (neither privileging nor disadvantaging, endorsing nor condoning any one over another)
• Be as inclusive as possible by consulting with as many affected parties as possible when inclusively designing or systemically accommodating the “needs of the group”
• Consider and balance any competing rights (per the OHRC’s Policy on competing human rights)
• Be attentive to internal group differences in accommodation needs
• Consider sector/context-specific factors, laws and policies.

Another question that may arise, and needs to be considered as part of the current policy update, is:

• To what extent may, or should, accommodation providers regulate, monitor, and/or intervene in the internal practices and collective observances of creed communities, if at all, where these may contradict human rights principles or equality ideals?

Individual creed community members have a right to associate, and collectively worship, with others, generally in a manner that they deem fit, provided that they may freely enter and exit the community in question, in keeping with constitutionally enshrined rights and protections for freedom of religion and freedom of association. Existing jurisprudence generally suggests that organizations should not interfere in the collective faith observances of creed communities. However, where collective observances are accommodated in public space, organizations may need to be mindful of potential competing rights, and consider forms of accommodation that most respect and fulfill the rights of all parties (for more on balancing rights, see the OHRC’s Policy on competing human rights).

The existing Policy on creed, moreover, contains a provision that would in effect nullify legal protections for “religions that incite hatred or violence,” and/or for “practices and observances that purport to have a religious basis but which contravene international human rights standards or criminal law.” The implications of this provision will need to be considered as part of the current policy update.

3.3 Establishing the existence of a creed

In most cases, it will not be necessary or reasonable to question whether a creed exists that gives rise to a duty to accommodate.[416] However, if there is some question, when faced with an accommodation request, a potential accommodation provider may need to assess whether there is a sincerely held belief or practice meriting accommodation under the law.

Though there is no set sequence in terms of whether determining the existence of a creed should happen before or after determining sincerity of belief, the question may need to be asked: Does the rights claimant have a creed that is protected by the Code?

Existing case law makes it clear that the claimant’s subjective or personal understanding of his or her creed is the focus, as opposed to the actual obligations of the faith or what others of the same faith believe or practice. The OHRC’s 1996 Policy affirms this point in many places, for instance stating: “Individuals may [legitimately] seek accommodation for religious practices or observances that do not conform to established dogma, or they may seek to observe a practice that is not shared by all members of the creed”.[417] Though not legally binding on the courts or Human Rights Tribunal of Ontario, how the OHRC decides to define creed in its updated policy will have a bearing on what may be deemed to constitute a creed under the Code. There are also other “objective” criteria that organizations may use when seeking to establish the existence of a creed (e.g. its nexus to a system of belief that is comprehensive, overarching, etc.), as discussed in the section on definition (see in particular Section IV subsection 1.1, but note that the OHRC is still formulating and clarifying potential criteria).

3.4. Observances versus practices

Distinguishing between core and peripheral dimensions of a religion or creed can be further complicated by the fact that, unlike the trend in parts of Europe where a stronger distinction between “observances” and “practices” has been maintained,[418] the Canadian jurisprudence generally holds that a practice may be accommodated even if it is not an “obligation,” “act of worship” or “requirement of the faith.” Given the noted distinction between practices and observances internationally,[419] the OHRC may want to review whether it wishes to retain the existing terminology and use of observances in its existing 1996 policy title (Policy on creed and the accommodation of religious observances). The Policy does not define “observances” or make any notable distinction between observances and practices. One of the few references states that “[creed] is defined as a professed system and confession of faith, including both beliefs and observances or worship” (p.4; emphasis added).

However, the distinction between practices connected to a creed and observances mandated by a creed may not be of much significance, in domestic courts, in light of the subjective approach adopted in Amselem (in which a practice need not be “officially” mandated by a religion to warrant protection under the law).

3.5 Applying Charter analyses in the Code context

There is some support in the case law for more narrowly restricting religious practices meriting legal protection to core religious observances, particularly in the jurisprudence based on Charter sections (1) and 2(a). As noted above, the courts have determined in section 2(a) jurisprudence that “trivial or insubstantial” interference with the right to freedom of religion is interference that does not threaten actual religious beliefs or conduct.[420] Similarly, according to the “Oakes test” under section 1 of the Charter, a limitation on a constitutional right or freedom (such as freedom of religion) may be deemed appropriate “if it can be established that: (i) the legislative objective is pressing and substantial; (ii) there is a rational connection between the legislative means chosen and the objectives sought; and finally (iii) the infringement is a minimal impairment on the right or freedom in question” (Emphasis added).[421]

Legal scholars have noted the higher courts increasingly relying on section 1 limitations in religious rights cases.[422] Some state that this is a result of the highly subjective definition of religion in Amselem, which significantly decreases the potential scope of internal (“objective”) limits on this right. Many argue that the Oakes test for limiting rights under section 1 of the Charter allows wide scope for interpretation, and, at least when applied to religious freedom cases to date, has not exercised the same kind of force for substantive equality as accommodation analysis under statutory human rights legislation. Some analysts argue that in such religious rights cases as Wilson Colony,[423] and R. v. Badesha, [424] the courts “have adopted in practice a very weak standard of justification under section 1, so that the right protects only a limited form of liberty”.[425] Both of these decisions appear to suggest that under the Charter, an interference with someone’s religious rights will only be considered substantial if the person would be required to choose between taking part in an activity (e.g. driving a vehicle or motorcycle) and their religion.[426] The apparent absence in such decisions of any requirement for respondents to examine ways of more inclusively designing or achieving legislative purposes[427] in the interests of advancing substantive equality shows the potential drawbacks and tensions of simply importing Charter minimal infringement analyses into creed human rights jurisprudence (see Section IV 2.1.4 for more on Code-Charter relation).

While the Charter analysis has tended to focus on individual liberty and allow for wide scope of interpretation of what constitutes minimal infringement, the human rights approach focuses on goals of equality and equal access to and enjoyment of societal goods, benefits and services, imposing a duty to accommodate limited by undue hardship.[428]

3.6 Religions that incite hatred or violence or contravene international human rights law

One other limitation on creed rights flows from the qualification stated in the 1996 OHRC Policy on Creed:

This policy does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that purport to have a religious basis but which contravene international human rights standards or criminal law (p.5).

This point may require further clarification in the updated policy.

In Huang[429] the HRTO rejected the argument that a belief system that is inconsistent with the Charter should be rejected. The HRTO distinguished between excluding the religion altogether and placing limits on the practice of the religion where that causes harm to others (at paras. 31-32):

In other words, Charter values are relevant to determining the scope of religious freedom protected under constitutional or quasi-constitutional statute. It is not, however, appropriate to exclude from the scope of the Code a belief system that, itself, may not be consistent with the Charter.
There is, in my view, a difference between placing limits on the exercise of a religious freedom because it interferes with others’ rights and refusing to recognize a religious movement as a “creed” because some of its beliefs may be inconsistent with the values expressed in the Charter.

3.7 Establishing sincerity of belief

“In terms of on the ground experience, people are often faced with the need for authority confirming that individuals need spiritual accommodation. For example, I recently had a case where a limo company requested that a driver trim his beard. The individual would not do this, but the company pointed to other Sikh drivers who had done so. The company said to bring a letter from a priest and then we will accommodate you. This arises in schools as well, where students who would like to bring a kirpan are still being asked to bring a letter from a priest. We need to make sure that, in the new creed policy, it is clearly about individual spiritual beliefs and sincerity of beliefs. I’m not seeing that on the ground.”
– Balpreet Singh Bopari, presentation at January 2012 Policy Dialogue on Creed

The Supreme Court has confirmed that, in Section 2(a) freedom of religion cases under the Charter, the claimant’s subjective or personal understanding of his or her religion is the focus, not the actual obligations of the faith or what others of the same faith believe or practice. The Court’s stated purpose for adopting this subjective definition of religion revolves around its disinterest in entering into theological debates. Decisions under the Code have also confirmed this subjective approach to creed, and corresponding focus on sincerity of belief.[430]

In assessing the sincerity of a person’s creed belief, organizations may seek to establish that the asserted creed belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice.”[431] It is a generally accepted principle in disability accommodation case law that one should accept the sincerity of the claim and assume good faith, unless there is reason to think otherwise (for example, based on a previous history of false or vexatious claims). Whether, or how and to what extent this default “good faith” standard applies in creed accommodation cases must be examined.

Cases to date indicate that organizations may be within their right to examine the sincerity and credibility of the claimant’s creed claims or accommodation needs.[432] However, in measuring the sincerity of an asserted creed belief or practice, it is not appropriate to assume that if a person has made exceptions to, or has failed to follow, his or her creed beliefs in the past, his or her present beliefs are not valid or sincere. As stated by the Ontario Court of Appeal in R. v. N.S.: “Past perfection is not a prerequisite to the exercise of one’s constitutional right to religious freedom.”[433] This point was reconfirmed in the recent Supreme Court decision in R. v. N.S., where the court held that “strength of belief” is a separate issue from “sincerity of belief.”[434] Also, note that while consistency of practice is one possible criterion of sincerity affirmed in the case law, organizations need to be sensitive to the reality and growing trend in contemporary religious/creed life of eclecticism, individualism and syncretism (as discussed in the background section III. 1.2).[435] Although not a sufficient determinant on its own, sincerity of belief may also be partially confirmed, particularly in cases of lesser known creeds, by establishing the objective existence of a creed and corresponding community of belief, to which the rights claimant evidently subscribes and belongs.

Given the centrality of sincerity of belief as a criterion in affirming the existence of a creed right, the policy update process will need to consider further principles and guidelines for assessing sincerity of belief, as this is often sought by organizations.

3.8 Religious leave

When an employee requests time off to observe a holy day, the employer has an obligation to accommodate the employee. While the need to accommodate time off for religious holidays, Sabbaths and prayers has been repeatedly confirmed, what has been more complex is determining if the employee is entitled to the time off with pay. The extent of the accommodation required is an issue that comes up often. Does the person have to be paid? Until what point? What about unpaid leave?

The OHRC’s 1996 Policy on Creed established the following general principles, based on case law at the time (based primarily on Chambly)[436]:

1. The employer has a duty to consider and grant requests for religious leave, including paid religious leave, unless to do so will cause undue hardship.
2. Equality of treatment requires at a minimum that employees receive paid religious days off, to the extent of the number of religious Christian days that are also statutory holidays, namely two days (Christmas and Good Friday).
3. The number of paid days may be three under some collective agreements which also make Easter Monday a holiday.
4. Beyond this point (i.e. two or three days), individuals may still seek accommodation. For example, measures might include additional paid leave days such as floating days or compassionate leave days, if such exist under company policy or collective agreements, or through unpaid leave.
5. The standard for all accommodation requests is undue hardship, which places a specific burden on the employer to produce evidence to the standard of undueness of the hardship and of its effect.[437]

These principles relied significantly on the Supreme Court of Canada decision in Chambly. [438] In this case, the Court considered a request by Jewish teachers for access to the special purpose paid-leave provision in their collective agreement that would have allowed them to have Yom Kippur off with pay. They were told they could take the day off, without pay. [439] The Court noted that Christian holy days of Christmas and Good Friday are provided for in the school calendar. Therefore, Christian employees were able to observe their religious holidays with pay. As this was not the case for the Jewish teachers, in the absence of some accommodation by the employer, the effect would be discriminatory.[440] In this case, accommodation through scheduling changes was not an available option as a teacher can only work when schools are open and students are in attendance. Therefore, the employer was required to give paid days off.

Later decision-makers have not accepted that the Chambly decision requires all employers to provide the same number of religious holidays with pay as Christian employees receive. In Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board,[441] the Ontario Court of Appeal considered the grievance of a member of the Worldwide Church of God who required 11 days off per year for religious holidays. The employer’s policy allowed two days off with pay and then allowed employees to fulfill remaining religious obligations through scheduling changes. The employee was presented with a variety of proposals to meet his religious requirements but he rejected them arguing that he was entitled to the 11 days off with pay.

The Court of Appeal found that the employer’s policy appropriately reflected the obligation to accommodate. The scheduling options provided for in the policy were: “a viable means of accommodation for employees requiring extra days off over and above the two paid leave days already provided for. It enabled them to schedule their required hours of work in a way that relieved them from having to choose between losing wages or encroaching on pre-existing earned entitlements [i.e. vacation days] and observing their religious holy days.”

The Court noted that in Chambly[442] the Supreme Court found that it was significant that it would be impossible for a teacher to make up the religious holiday by working an extra day. Therefore, the Court concluded that employers can fulfill their duty to accommodate by offering appropriate scheduling changes, without first having to show that granting a leave of absence with pay would result in undue economic or other hardship.

In Markovic v. Autocom Manufacturing Ltd.,[443] the HRTO considered a situation where the employer did not provide two days off with pay to correspond to the number of Christian religious days that are statutory holidays. Rather, the employer’s policy provided a “menu of options” for accommodation which included making up the time, switching shifts with another employee, working on a secular holiday when the facility is in operation (subject to the Employment Standards Act), adjusting shift schedules, using vacation days and taking an unpaid leave of absence. Mr. Markovic complained that Autocom’s failure to provide him with a paid day off to celebrate Serbian Orthodox Christmas was discriminatory.

The HRTO concluded that by providing a process for employees to arrange for time off for religious observances through options for scheduling changes, without loss of pay, the policy was appropriate and not discriminatory. The HRTO found the circumstances were different than the Supreme Court of Canada’s decision in Chambly, where scheduling changes were not available due to the nature of the (school) workplace and although the collective agreement allowed for three days of special leave with pay, the employer took the position that they could not be used for religious observances.

However, the HRTO did note in Markovic[444] that there may be individuals for whom none of the scheduling options in the policy would be suitable, and stated that in such cases other accommodations must be explored. The HRTO left open the possibility that in a given circumstance, the outcome might be days off with pay.

This approach of enabling employers, particularly in employment contexts with flexible scheduling options, to fulfill their duty to accommodate through a variety of possible means other than paid leave was also affirmed by the HRTO in Koroll v. Automodular Corp.[445] In these cases, the courts appear to suggest that they will not make a finding of adverse effect discrimination as long as the search for solutions permits time off to observe religious holy days without significant negative employment consequences (such as loss of pay). However, there is considerable scope for differences in determining what constitutes a negative employment consequence (equal to adverse effect discrimination).[446] This will need to be reviewed and further clarified as part of the current policy update.