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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:
- be genuinely held
- be a belief system rather than a mere opinion or viewpoint based on the present state of information available[366]
- be related to a weighty and substantial aspect of human life and behaviour
- 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:
- a one off belief (meaning that it does not have to be shared by others)
- based on a political doctrine, or
- 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]
[347] McCabe et al. (2012, p. 33) quote the Cambridge dictionary definition of creed.
[348] In this case, the HRTO rejected the argument that Falun Gong is akin to a “cult” and should not be accepted as a creed because as a belief system it is not reasonable, cannot withstand scientific scrutiny, or espouses beliefs that are not consistent with Charter values. In her testimony, the complainant referred to Falun Gong as a “practice” as opposed to a “religion.” However, the HRTO accepted expert evidence that the notion of “religion” is significantly different in China than in the West and that in western terms Falun Gong would be understood as a creed. The HRTO concluded that Falun Gong consists of a system of beliefs, observances and worship and falls within the notion of “creed” under the Code (see Huang, supra note 14).
[349] In Re O.P.S.E.U. and Forer (supra note 12), a 1987 labour arbitration decision, after reviewing evidence, including from experts, regarding its history, practice and beliefs, Wicca was found to fall within the term “religion” as used in the collective agreement. The panel adopted “a broad, liberal and essentially subjective” approach to religious observance set out in an earlier Ontario Court of Appeal decision (Re O.P.S.E.U. and Forer, (1985), 52 O.R. (2d) 705 [C.A ]). In that case, the Court of Appeal noted the variety of religions and religious practices in Canada and stressed that what may be regarded as a religious belief or practice by one religion may be regarded as secular by another. Religion is not to be determined from the perspective of the “majority” or “mainstream” in society.
[350] In Jazairi v. Ontario Human Rights Commission, 1999, supra note 306, the Ontario Court of Appeal confirmed that the complainant’s opinions concerning the single-issue of the relationship between the Palestinians and Israel did not amount to a creed. However, the Court 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 commented that it would be a mistake to deal with such important issues in the abstract.
[351] In Roach v. Canada (Min. of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, 1994 CanLII 3453 (FCA), Linden JA distinguished between “conscience,” as a “location of profound moral and ethical beliefs,” and “political or other beliefs” that are protected by freedom of expression under s 2(b). If one holds that the Code should take its cue from the Charter in situations of statutory ambiguity, as discussed earliler, this could be interpreted to suggest that political belief should be excluded from the scope of creed protections under the Code.
[352] Chiodo (2012a; 2012b) makes this argument, more specifically, in the context of conscience under the Charter. She argues that the same threshold could apply to interpreting creed under the Code.
[353] Amselem, supra note 137.
[354] Ibid. at para 39.
[355] Ibid. The (1996) Policy on Creed speaks to this comprehensive belief or worldview in its definition of creed “as a professed system and confession of faith, including both beliefs and observances or worship” (p.4; emphasis added).
[356] Bennett v Canada (Attorney General), 2011 FC 1310 (CanLII) at para 55 (citing indicia for religion recognized in a United States decision. It is important to note, however, that some of the indicia cited in the U.S. decision are not consistent with what have been found to be creeds in Ontario, e.g. the requirement of a founder or prophet, a clergy and important texts, prescribing dieting or fasting etc.).
[357] “In Amselem, supra note 137 for example,” Chiodo (2012a) argues, “while the apartment-dwellers’ belief that they had to erect succahs did not reflect an obligation incumbent on all Jews, it bore a nexus to the Jewish religion” (citing Amselem at para. 69). See Section V 3.2 above for more discussions of legal arguments and decisions raising a collective, association-based dimension of religion and creed.
[358] Chiodo, 2012b, p. 10.
[359] Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) (“Hashman”) Employment Tribunal (ET/3105555/09, 26 October 2011).
[360] Grainger plc v Nicholson (“Grainger”) [2010] IRLR 4 (EAT) [Employment Appeal Tribunal].
[361] Closely following international human rights law (in particular Article 18 of the Universal Declaration of Human Rights which extends rights to “religion or belief”), Article 9 of the European Convention on Human Rights provides that:
- 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, and to manifest his religion or belief, in worship, teaching, practice and observance.
- Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Citizens in European member countries may appeal to the ECHR, as individual plaintiffs, against their member state and its directives.
[362] Grainger, supra note 360.
[363] Other important cases not discussed here include McClintock v Department of Constitutional Affairs [2008] IRLR 29, R Williamson v the Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246, R v. Countryside Alliance v Attorney General [2007] UKHL 52, Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 and Eweida v British Airways Plc. [2009] ICR 303.
[365] Supra note 359.
[366] In the UK, the distinction between belief system and ‘mere’ opinion is derived from McClintock v Department of Constitutional Affairs [2008] IRLR 29, Times 5 December 2007, in which a Magistrate claimed that he had suffered discrimination due to his opposition to same sex marriage (Pitt, 2011, p. 389). He lost the case, “because the facts indicated that the real basis for his objection was not his interpretation of Christianity but rather his opinion that children fared best in a traditional household with a heterosexual couple (ibid).” In Hashman, the court states that in McClintock v. Department of Constitutional Affairs, some of the limits of the test were specified; more specifically, “it is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available (ibid, para 44).” Some argue that the distinction between a mere opinion and a philosophical belief system is blurry and difficult one open to significant divergences in interpretation – a point touched upon by the defense counsel in Hashman.
[367] Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 at para. 36 and R (Williamson) v the Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246 at para 23.
[368] R (Williamson) v the Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246
[369] Ibid, at para. 43.
[370] Note that in Hashman, supra note 359, the court explicitly limited the precedential value of the case by stating that the ruling pertained only to the views and circumstances of the plaintiff. The decision should therefore not be interpreted to mean that anti-foxhunting views in themselves constitute a philosophical belief system.
[371] Chiodo, 2012a.
[372] For example see Pitt, 2011.
[373] Supra note 359, at para 43.