I. Introduction
1. Setting the context
Since the Ontario Human Rights Commission (OHRC) published its Policy on creed and the accommodation of religious observances (Policy on creed) in 1996, there have been significant legal and social developments in Canada and internationally that have shaped the experiences of communities identified by creed. There is also extensive public debate about the appropriate scope and limits of human rights protections for religion and creed in Ontario society.
The OHRC is currently updating its 1996 Policy on creed to reflect these developments. The goal is to clarify the OHRC’s interpretation of human rights based on creed under the Ontario Human Rights Code (the Code) and advance human rights understanding and good practice in this area. The update, which began in 2011, will take two to three years to finish. It will involve extensive research and consultation, and will draw on lessons learned from the OHRC’s recent work on the Policy on competing human rights.
To date, the OHRC has hosted two major consultation events, including:
- A policy dialogue on human rights, creed and freedom of religion on January 12 – 13, 2012 at the University of Toronto’s Multi-Faith Centre, in partnership with the University of Toronto’s Religion in the Public Sphere Initiative and Law School
- A legal workshop on human rights, creed and freedom of religion on March 29 – 30, 2012 at York University’s Osgoode Hall Law School, in partnership with York University’s Osgoode Hall Law School, Centre for Public Policy and Law and the Centre for Human Rights.
We then published selected policy dialogue papers in a special issue of Canadian Diversity. These papers, along with those from the legal workshop, are available on the OHRC website at www.ohrc.on.ca.
The OHRC has also done extensive research internally, including:
- A Creed case law review
- An environmental scan and literature review
- Review and analysis of 2010/11 and 2011/12 fiscal year applications currently at the Human Rights Tribunal of Ontario (HRTO).
The OHRC will be engaging in further research and public consultation in 2013-2014, in part based on responses to the Human Rights and Creed Survey, and feedback from a forthcoming Human Rights and Creed Research and Consultation Report that will be posted on the OHRC’s website in the Fall of 2013.
2. The purpose of this report
The primary aim of this paper is to report on OHRC research and consultation findings and analysis to date on key creed-based human rights issues, options and debates. We hope that this will add further transparency to our creed policy update process, and help to increase general public awareness of creed-based human rights issues. Another goal is to develop a stronger contextual framework for understanding and addressing contemporary creed-based human rights issues.[1]
We welcome and encourage your feedback on the questions and content of this report. Please email your comments to creed@ohrc.on.ca. Your feedback is valued and will help to guide us as we update the creed policy in the coming year.
3. Criteria for assessing and developing human rights policy
When developing and assessing policy issues, options and positions, the OHRC considers the following criteria:
(a) An interpretation of the Code that protects, promotes and advances the purpose of human rights legislation in Ontario[2]
The Preamble to the Ontario Human Rights Code elaborates four key principle goals of the Code: (i) recognizing the dignity and worth of every person; (ii) providing equal rights and opportunities without discrimination that is contrary to law; (iii) creating a climate of understanding and mutual respect, so that; (iv) each person feels a part of the community and able to contribute fully to the development and well-being of the community and the province.
(b) The OHRC’s mandate to promote and advance respect for human rights in Ontario, to protect human rights in Ontario, and to identify and promote the elimination of discriminatory practices[3]
The Commission strives for objective, principled and informed policy development.
(c) Canadian and international human rights law, legal decisions and principles for statutory interpretation[4]
OHRC policies may advance and broaden interpretations of the Code. However, they should not contradict clear legal precedents for interpreting the Code at the time of their publication.
[1]This in part recognizes that courts and tribunals are increasingly relying more on looking at context when analyzing discrimination, and relying less on abstract formal analyses.
[2] The courts have affirmed that human rights legislation, including the Code, should be given a liberal and purposive interpretation, in keeping with its quasi-constitutional status. The higher courts have also provided details on the purposes of human rights statutes, also discussed in Section IV. 2.1.5.
[3] As stated in Section 29 of the Code.
[4] Relevant principles of statutory interpretation are considered in Section IV. 2.1. International laws and instruments that are relevant to developing creed policy include, but are not limited to the: (1948) Universal Declaration of Human Rights (UNDHR); (1966) International Covenant of Civil and Political Rights (ICCPRD); (1966) International Covenant on Economic, Social and Cultural Rights (ICESCR); and (1981) Declaration on the Elimination of all Forms of Intolerance and Discrimination based on Religion or Belief.