III. Background and context

 

[128] Systemic faithism may appear neutral on its surface, but nevertheless, has an “adverse effect” or exclusionary impact on persons belonging to particular communities of belief.

[129] Systemic or institutional discrimination consists of patterns of behaviour, policies or practices in a Code-protected social area that are part of the social or administrative structures of an organization or sector, which adversely affect particular individuals, based on their membership in a Code-protected social group, in a Code-protected social area. Though often neutral on its surface, systemic discrimination can also overlap with types of discrimination that are neither neutral nor inadvertent (see the OHRC’s Policy on racism and racial discrimination).

[130] The term as used here was taken from David Seljak et al’s (2008) study. Seljak et al., 2008, p. 12 use the term to draw attention to the many ways the “putatively-secular” and “religiously neutral” contemporary Canadian public sphere remains “residually and normatively Christian;” that is, they explain, “it still bears the imprint of its Christian past... contains overt elements from the Christian tradition and is structured in a way so as to accommodate Christian values, practices and forms of community”. See also Seljak, 2012 available for download on the OHRC’s website).

As one of Canada’s foremost religious historians, Roger O’Toole, 2006, p. 8 argues that "no real understanding of the forms and values of Canadian society is possible without a knowledge of the diverse religious convictions, organizations and experience that have substantially shaped this society". Religious studies scholar Paul Bramadat, 2005, p. 3 similarly argues that “[i]t is difficult to understand the historical, or even the present, social structure in this country without knowing, among other things, that for roughly a century prior to World War II, the Roman Catholic and several Protestant (especially the Anglican) churches enjoyed a kind of de facto (and in some institutions, de jure) status as established (i.e., formally favoured) denominations.”

[131] Residual Christianity can be a basis of systemic faithism, to the extent that it results in the inadvertent disadvantaging of individuals and communities practicing faiths and creeds outside of the historical mainline Christian denominations (whether non-Christian or non-mainstream Christian).

[132] The Canadian Constitution Act, 1867 contains provisions that enable and protect public funding of Roman Catholic Schools. Ontario and Saskatchewan, however, are the only provinces that still fund Catholic schools, without funding other faith-based schools. In 1999, the United Nations Human Rights Committee ruled that Ontario’s school funding policy was discriminatory based on religion. This decision was reaffirmed in 2006 in another report on the state of human rights in Canada (Seljak et al., 2008).

[133] Scholars include other less obvious, primarily symbolic, examples of the lingering force of Christianity in Canadian public institutions such as:

• The statement in the preamble of the Constitution: “Whereas Canada is founded upon principles that recognize the Supremacy of God and the rule of law...”
• 21 pieces of federal legislation refer to “God,” 17 to “religion,” four to “Christian” and one to the “Bible”
• 11 pieces of legislation require the swearing of an oath to God
• The official title of our head of state according to the Canadian election writ is “ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith”
• The Speech from the Throne concludes with the words “May divine providence guide you in your deliberations”
• The national anthem, O Canada, officially adopted by Parliament in 1980, includes the line. “God keep our land glorious and free!” (an addition to the anthem first made in 1968 at the recommendation of a government commission)
• Canadian currency includes the marking “D.G. Regina” beside the name of Elizabeth II that stands for dei Gratia (Queen by the Grace of God)
• The national motto, A Mari usque ad Mare (from sea to sea) is taken from Psalm 72:8 (“He shall have dominion from sea to sea and from river unto the ends of the earth.”)
• Some provincial and municipal governments have opened sessions of legislatures and municipal councils with Christian prayers and have required an oath to God in courtrooms (Examples taken from Beaman, 2003; Biles & Ibrahim 2005; Beyer, 2008; Kunz 2009; O’Toole 2006; Seljak et al., 2008).

[134] Scholars cite the following institutional examples of residual Christianity:

• Ongoing significant church ownership and operation of healthcare and social services institutions, including large-scale hospitals, health programs and child welfare services (e.g. Toronto’s Catholic Children’s Aid Society, St. Michael’s Hospital)
• Christian structuring, or norm, of many chaplaincy programs and services in public institutions (including hospitals, prisons, and the military), many of which are jointly administered by religious (predominantly Christian) organizations. In its consultations, the OHRC also heard that the structuring of “chaplaincy” training and certification processes also remain overwhelmingly Christian in orientation. Even the title of “chaplain” has Christian origins. One Hindu participant at the policy dialogue commented, “I am the only qualified Hindu Chaplain in Canada, or even North America, and I had to take years of training at Christian institutions in order to get this designation”
• Organization of the work week around the traditional Judaeo-Christian Sabbath days of rest.

Roger O’Toole (2006) highlights many other ways that Victorian Christianity in particular (with historical roots in Britain and Western Europe) has profoundly shaped contemporary Canadian institutions, from universities, hospitals and social service agencies, to the political party system, welfare state and public morality (including contemporary preoccupations with law and order) more generally.

[135] R.S.O. 1990, c. H.19, s. 19 (1).

[136] R.S.O. 1990, c. H.19, s. 19 (2).

[137] Describing the relationship between law and religion as a “cross-cultural encounter,” Berger (2012)
for instance shows ways current prevailing definition of religion in Canadian law, as elaborated by Justice Iacobucci in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 reflects this liberal cultural understanding of religion. For example, he argues that Canadian court assessments of religion overwhelmingly (1) envision religion as an individual versus group phenomenon, (2) cast religion as a fundamentally private rather than public phenomenon, and, (3) privilege values of individual autonomy and choice over community values, identity and norms (see also Kislowicz, 2012). Faisal Bhabha (2012) similarly observes how the courts have tended to only recognize religious accommodation rights claims based on individual interests, while “claims based on group or community rights, on the other hand, have been generally unsuccessful” (see also Beaman, 2003; 2006; Kislowicz, 2012).

[138] Summing up the impact of this cultural bias in law, which reflects and reproduces what Lori Beaman (2003) calls “religious normalcy,” Benjamin Berger, 2012 p. 26 argues:

Briefly put, the more that a religious claim comports with the way that the law imagines religion – as an individual and private expression of autonomy – the more it is fit for legal tolerance. The guarantee of religious freedom and equality will be readily enforced to protect religion that already comports with law’s cultural commitments (see also Beaman, 2003).

[139] Many recent high-profile, precedent-setting accommodation cases receiving significant public and media attention have involved members of the Sikh faith. Public controversy has surrounded many of these cases, whether involving wearing kirpans (ceremonial daggers) in schools, legislatures or courtrooms, or wearing turbans or uncut beards in the place of standard workplace uniforms and safety equipment. All of these cases involve public expressions of religion, against the status quo norm. The Sikh-Canadian community has been at the forefront of expanding the legal human rights frontiers of religious accommodation. This has exposed members of this community to significant degrees of hostility and backlash (see for instance Grant v. Canada (Attorney General), [1995] 1 CF 158; Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256; Bhinder v. Canadian National Railway, [1985] 2 S.C.R. 561; Loomba v. Home Depot Canada, 2010 HRTO 1434 (CanLII); Randhawa v. Tequila Bar & Grill Ltd., 2008 AHRC 3 (CanLII).

Legal observers have also noted how the courts have been less than generous in recent years in extending religious freedom protections to Christian minority groups, such as the Hutterite Brethren of Alberta, or other Mennonite groups practicing more communally-centred forms of religion, against status quo religious norms (see for instance Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567). Scholars have also observed how growing immigration of non-western-born Christians
to Canada is contributing to the significant growth of Evangelical and Pentecostal Protestant Christian denominations, which tend to favour more public, collective and politically-interested expressions of Christianity, sometimes in ways “rais[ing] the hackles of secular and mainline Christian Canadians” (Seljak et al., 2007). For more on the nature and impact of such intra-Christian diversity see also Fadden and Townsend (2009) and Wilkinson (2006).

[140] A 2007 Léger Marketing poll commissioned by Sun Media surveying over 3,000 Canadians, for instance, asked respondents: “Does respecting the following religious practices pose a problem to living in your city’s society?” Levels of tolerance for religious practice progressively declined as observances became more public and visible, particularly those of the Islamic faith. For instance, whereas a majority believed that prayer (84%), the observance of the Ramadan fast (83%), and prohibition of alcohol (77%), did not pose a problem, the veil, contrastingly, was seen to pose a problem for 37% of respondents, as compared to the wearing of religious ornaments more generally (25%) (Léger Marketing, 2007). While the meaning and implications of such findings are debatable (for instance how much is resistance to the veil attributable to concerns with gender inequity versus civic norms of what belongs in public/private), religious studies scholars have observed an evolution of Canadian identities and norms of civic engagement in the current era. The historic maxim that “to be a good Canadian one must be Christian,” Seljak, 2012, p. 10 for instance observes, has increasingly “been replaced with a new one: to be a good Canadian (egalitarian, democratic, rational and multicultural) one must be secular – or at least the right kind of religious person, that is, one who confines religion to private life”.

[141] Survey and opinion poll research provides some support of the view that “secularism in Canada can accommodate historically dominant forms of Christianity” and/or expressions of religion/creed that are consistent with this, but not faiths or practices that are perceived not to be as such. Drawing attention to this double standard, Seljak et al. (2008) for instance cite the example of the 2007 Ontario election campaign debate around religious school funding, which saw the (John Tory) conservative proposal for extending public funding to faith-based schools beyond Catholicism roundly rejected by the electorate, as an affront to secular ideals (in terms of what belongs in the private versus public sphere) and threat to civic unity. Interestingly, while a mid-election poll conducted for the CTV television network and the Globe and Mail newspaper showed that 71% of the electorate was opposed to public funding for faith-based schools, subsequent coalitional efforts organized under the banner of ‘One School System’, advanced by the Canadian Civil Liberties Association and (solely among political parties) the Green Party of Ontario among others, gained little traction or support from the public for its proposal to end public funding of Catholic schools. Another September 10, 2007 opinion poll published in the Montreal Gazette during the Quebec Bouchard-Taylor Commission on Reasonable Accommodation similarly revealed that while Quebecers overwhelmingly disapproved of Jews or Muslims getting time off work to pray (72%), or Muslim women wearing the (face-covering) niqab in public (67%), or the hijab in school (61%), some 59% of respondents had no issue with displaying Christian crucifixes on the walls of public schools. Seljak et al. (2008) and Emon (2012) explore how this same double standard dynamic played out in the 2004-2005 debates in Ontario over the introduction in Ontario of a Sharia-based family law arbitration system (an analogous system of which was in use, without issue, up until then, by Jewish Canadian communities, before being roundly publicly rejected when laid claim to by Muslims).

[142] For example, Beaman (2006) argues that religious freedom and equality protects only a narrow range of what is considered sacred and spiritual from an Aboriginal perspective. Beaman suggests this is one reason why constitutional legal protections for religious freedom have rarely been used by Aboriginal Peopless as compared to treaty and land right claims, which, unlike religious freedom and equality laws, do recognize a collective basis for such rights claims. This has resulted in minimalizing and marginalizing Aboriginal spirituality, and desecration of Aboriginal sites and lands, Beaman argues. She also notes a general lack of awareness about and disregard for the more systematic disadvantages Aboriginal communities face in practicing their spirituality because of the culturally specific (individualistic) focus and bias of Canadian legal protections for religion and creed (ibid). Beaman highlights how the very categories of “creed” and ”religion” – produced out of a Christian historical experience, language and tradition – in effect positions western European conceptions of religion as “the norm against which Aboriginal spirituality is measured” or “accommodated” (Beaman, 2006, p. 237; see also Beaman, 2012).

[143] Bannerjee and Coward (2005), as well as Boisvert (2005) and King (2012) show how Hindu and Buddhist end-of-life customs and burial rituals have to be significantly altered in Canada to comply with Canadian law and health and safety regulations. The ways Hindu and Buddhist religious buildings are designed and built must also adapt to meet local Building Codes and standards, as must traditional religious governance structures within those buildings [for example, to qualify for non-profit organization status and recognition (Bramadat & Seljak, 2005). Structuring and organizing the Canadian work week around the Christian Gregorian calendar affects these communities’ ability to practice their religion in customary ways.

[144] For example, Matthew King’s (2012) Creed Policy Dialogue paper, “On Canadian Buddhist Engagement with Religious Rights Discourse and the Law” highlights the ways the OHRC’s definition of religion and creed – in its emphasis on “belief,” discrete acts of worship and prescribed ritual practices – privileges, for legal protection, what he calls “white, privileged, middle class Buddhism (an individualized, faith-based tradition which draws heavily upon liberal Protestantism)” (King, 2012, p. 70). He argues that obscured from view and equal legal protection is “the more social, exteriorized and community-based experience of hundreds of thousands of ‘ethnic’ Buddhists in Canada,” for whom “religious affiliation and identity are perhaps less about belief and practice so defined, as they are about marking a familiar social enclave in the midst of an alien Canadian society” (ibid.).

[145] Lai et al.’s (2005) discussion of the failure of Canadian public discourse, institutional practice and official census data collection to even recognize “Chinese religion” – as distinct from Daoism, Confucianism or Buddhism – is a particularly poignant example of “subtle discrimination” that denies the reality of Chinese religion, and with this, “the very basis of their culture and their self-identity”
(Lai et al., 2005, p. 104).

[146] Noting the significant forms of exclusion that can result from mono-cultural understandings of religion in law, policy and popular discourse, Mahmood, 2005, p. 62 calls for a “a dialogue about how Canada's diverse self-defined religious groups actually think about the concept of religion” as a critical starting point for future discussions on advancing Canadian multiculturalism (and, we could add, on creed rights under the Code more generally).

[147] See for instance Huang v. 1233065 Ontario, supra note 14, and the OHRC’s Creed Case Law Review for more examples. In Huang v. 1233065 Ontario, the Human Rights Tribunal of Ontario 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. The complainant referred to Falun Gong as a “practice” instead of 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 is a system of beliefs, observances and worship and falls within the notion of “creed” under the Code.

[148] Seljak et al. (2008).

[149] The OHRC’s own definition of creed with respect to secular moral and ethical belief is examined
in Section IV. McCabe et al. (2012) have suggested further examples of how secular humanists are disadvantaged by current policy and legal definitions of rights based on religion and creed.

[150] Sociologists of religion have moved away from the language of” “cults” and ”sects,” with their negative connotations, in favour of the term New Religious Movements (NRMs) or “baby religions” as Canadian sociologist, Susan Palmer, prefers to call newer religious movements and creed-based communities
(see Palmer, 2006).

[151] Census statistics reveal a growth in “para-religious groups” ranging from Scientology, New Age, Paganism and Satanism, to Theosophists, Rastafarians and Wiccans. For more on such demographic trends, see Section III 1 in this Background section.

[152] Síân Reid’s survey of contemporary practitioners of Wicca and other forms of paganism found that many “believe that there is some stigma attached to their religious affiliation, [and] the potential for undesirable social consequences ranging from ridicule and scorn to ostracism to the possibility of job losses, loss of custody and refusal of housing to actual physical threat exists” (cited in Seljak et al., 2007, p. 28; see also Reid, 2005; Beaman, 2006b). Sociologists of religion have debunked many of the myths that have surrounded such para-religious groups, often pejoratively labelled “cults,” such as their alleged coercive brainwashing methods, irrationalism, use of violence and “black magic.” Seljak et al. (2007) note that popular perceptions of Wiccans and Pagans as engaging in devil worship, sexual promiscuity and other forms of sensational diabolism, have been largely fuelled by a combination of inquisition-era imagery that has lingered from the Christian Middle Ages, to contemporary horror movies.

[153] There are several examples of such creed minority communities being subjected to various forms of prejudice and discrimination in the human rights case law, and literature more broadly, which is pushing the boundaries of what and who rightfully merits human rights legal protection (see for instance Gail McCabe et al., 2012; David Sztybel, 2012; Camille Labchuck, 2012; and the OHRC’s Creed Case Law Review). The fact that HRTO applications by atheists, agnostics and people identifying with ”no religion” in 2011 outnumbered applications by Roman Catholics is one indicator of this.

[154] See Seljak et al. (2008).

[155] One of the primary recommendations of the 2008 Bouchard-Taylor Commission Report on Religious Accommodation in Quebec was the need to develop a government White Paper to clarify the nature and meaning of Canadian commitments to the secular. Political philosopher Rajeev Bhargava (2010), similarly observes the need in Western liberal states, more generally, “to improve the understanding of their own secular practices”. See also Seljak (2012), Chiodo (2012a), and Benson (2004 and 2012) for more on “fuzzy,” ahistorical uses of the term in contemporary Canadian public discourse.

[156] According to the New Oxford Companion to Law (2008), the word ‘secular’ comes from the Latin word ‘saecularis’ (meaning ‘temporal’ or ‘of a generation, belonging to an age’), which was used in Catholic Canon Law to describe clergy who lived within medieval society and not in seclusion in a monastery. In this usage, dating back to the 14^th century, the term meant “of or pertaining to the world,” or, as defined in Dr. Johnson’s Dictionary “worldliness – attention to things of present life” (Benson, 2004). Earliest
uses did not necessarily connote a-religiousness, consistent with some of the more pluralist uses and interpretations today (Berger, 2002), though the term did also come to be used more negatively to mean ‘godlessness’ (New Oxford Companion to Law, 2008). The latter negative connotation was turned on its head by the positivist movement in the 19^th century.

[157] George Holyoake and Charles Bradlaugh are most credited with having developed secularism as an ideology (Benson, 2004; New Oxford Companion to Law, 2008). Secularism as a broader ideology took myriad forms, including everything “from belief that scientific materialism exhausts the explanation of existence to the view that values inhere only in human orientations to the world and not in the world itself to the notion that there is no world of transcendent meaning or eternal time that should orient people in relation to actions in the everyday world” (Calhoun, 2008, p. 7).

[158] Despite contemporary conventional (‘everyday, commonsensical’) renderings of ‘secular’ as “simply the absence of religion, rather than the presence of a particular way of looking at the world or, indeed, as ideology,” aspects of positivist ideology have been “tacitly incorporated” into modern political theories and uses of the secular (Calhoun,2008, p. 8). It was the 19^th century positivist movement, for instance, that first recommended relegating religion to the sphere of private worship.

[159] Novak, 2006, p. 107. Modern political uses often denote this more minimal (secular versus secularist) understanding, presupposing a degree of: separation between religion and the key branches of the
state (religious authorities do not govern the state, nor do religious rules or principles form the basis
of governing); state neutrality with respect to religion (though diversely interpreted, generally, state representatives may hold religious beliefs but this cannot influence their state affairs); and, as a corollary, the non-privileging of any one religion over another in public life. However, modern political renderings
of the secular generally retain, indeed hinge on, this latter distinction between public and private affairs, more and less relegating religion to the private side of this foundational dichotomy (Calhoun, 2008).

[160] Usually a particular historical institutional model of the secular – most often the American or the French version – is taken as the only possible model or meaning of the secular in public uses of the term. “This kind of move amounts...to a fetishization of the favoured institutional arrangements, whereas one should start from the goals and derive the concrete arrangements from these,” argues Charles Taylor (Taylor, 2010, p. 28). See also Bhargava (2010) for discussion of this problem.

[161] Benson referred to this problem, at the March 2012 Human Rights, Creed and Freedom of Religion Legal Workshop at York University, as “presuppositional definition”, i.e. presupposing a definition that is far from clear.

[162] These goals were first stated in the in the (2008) Bouchard-Taylor Commission Report (2008, p.135-6; see Woehrling, 2011 for further discussion). Taylor, 2010, p. 23 adds a third core goal of secularity in his article, in keeping with original aims of the French Revolution:

(1)   Fraternity – namely, the pursuit of (at least a minimal degree of) consensus and relations of harmony and comity between members of different faiths, through the inclusion of all spiritual families (religious and non-religious) “in the ongoing process of determining what the society is about (its political identity) and how it is going to realize these goals (the exact regime of rights and privileges).” (See also Bouchard-Taylor, 2008 for this distinction between ends and means).

[163] Bhargava (2010). In this same article, Bhargava argues for the need for “contextual secularism” and ”contextual moral reasoning”, drawing on the instructive Indian secular model. Unfortunately, Taylor, 2010, p. 29 observes, it is common in disputes around the “demands of secularism” to remain “under
the illusion that there is only one principle here, say, laicite and its corollary of the neutrality of public institutions or spaces” or “that there is no need or place for choice or the weighing of different aims,” which impoverishes meaningful dialogue on the choices before us.

Interestingly, many of the Canadian federal governmental policy practitioners interviewed in Gaye and Kunz’s (2009) study favoured a principle-driven, but contextual, case-by-case approach, over systematic “rigid, high-level directives,” given ever-changing social and demographic realities and unique situations, which called for flexible policy. Such findings further affirm the importance of looking at the underlying values and goals, when dealing with issues of religion and creed and their accommodation in public spaces.

[164] The failure to acknowledge the differing ways of weighing and realizing secular goals can fuel polarizing discourses between religious and non-religious persons (for or against secularism), where opponents are caricatured as either a-religious/anti-religious extremists, or as religious zealots having
no commitment to the secular (instead of acknowledging the diverse ways of understanding and realizing secular ideals).

[165] Many scholars, as well as a Canadian legal decision, have outlined this diversity in understanding and concretely institutionalizing the secular, with multiple gradations in between these two poles (see for instance Adelman, 2011; Berger, 2002; Benson, 2004; Bhargava, 2010; Buckingham, 2012; Cladis, 2009; Seljak et al., 2008; Woehrling, 2011). In Simoneau v Tremblay, 2011 QCTDP 1 (CanLII), the Quebec Human Rights Tribunal heard expert evidence that identified four ways secularism interacts
with the life of the state:

(1)    Integral secularism is characterized by a determination to secularize the public sphere through an ‘antireligious activism’ and a vision of an insurmountable conflict between modernity and religion.

(2)    “Neutral” secularism claims a secularism open to individual freedom of religion, coupled with the strict neutrality of the state. Its followers oppose religious expressions in the sphere of power, but they accept the preservation of certain religious symbols and practices in public institutions.

(3)    Open secularism is similar to “neutral” secularism, but recognizes both individual and collective religious rights. A neutral state is seen as able to accommodate religious and cultural expressions, while ensuring that religion plays no role in the exercise of power.

(4)    The integral religious approach sees religion as a requirement of a healthy social order and lessens the predominance of secularism (cited in Chiodo, 2012a).

[166] This draws on the (2008) Bouchard-Taylor Commission Report and its distinction between “la laïcité overte” and “la laïcité fermée.” These models have been alternatively contrasted and conceived (with some minor differences) as “moderate secularity” versus “radical secularity” (Novak, 2010); “secularism-as-pluralism” versus ”secularism-as-a-religiousness” (Berger, 2002); or ”accommodationist” versus ”separationist” approaches (Beaman, 2006).

[167] The Bouchard-Taylor Commission defines “open” secularism:

Open secularism recognizes the need for the State to be neutral (statutes and public institutions must not favour any religion or secular conception) but it also acknowledges the importance for some people of the spiritual dimension of existence and, consequently
"the protection of freedom of conscience and religion' (Bouchard-Taylor, 2008, p. 140).

While noting “profound disagreement” during their extensive consultations in Quebec on these competing models of the secular, the Bouchard-Taylor Commission report “affirms that it is the model of open secularism that should continue to be applied because it best allows us to respect both the equality of persons and their freedom of conscience and religion and thus to achieve the two fundamental purposes of secularism” (Bouchard-Taylor, 2008, p. 141).

The term “open secularism” was used in an earlier report, entitled Religion in Secular Schools: A New Perspective for Quebec, published in 1999 by a Quebec Task Force on the Place of Religion in Schools. The Task Force recommended adopting “open secularism” to inform the secularization of Quebec schools, “that is, one that did not rule out recognition of religious realities in relation to respect for the freedom of conscience and religion of both those attending schools and those who teach in them” (cited in Milot & Tremblay, 2009).

[168] Laïcité is often used in Canada to denote the closed French republican model of secularism, whether as instituted in France or as aspired to in Quebec post-Quiet Revolution. However, the term laïcité does not necessarily have to connote this closed model, despite popular uses as such. An example is the Bouchard-Taylor Commission Report’s distinction between “la laïcité overte” (open secular) and “la laïcité fermée” (closed secular). Religious studies scholar Lori Beaman (2008) also draws attention to the semantic compexity of defining the term laicity. Drawing on the work of Solange Lefebvre, Beaman argues the term is often mistranslated and misunderstood as ”secular” or ”secularization” in English. Lefebvre (2008) argues that the term can neither be simply translated nor transposed to other cultures. However, in her (2009) article on “Laicity and Religious Diversity,” Sophie Therrien, Advisor to the Quebec Ministry of Immigration and Cultural Communities, attempts to do just this, distinguishing between laicization, laicity and laicism, drawing on the work of Micheline Milot (2002):

Laicization refers to the deliberate steps taken by the State to maintain neutral relations with religions and to prevent any direct interventions by religions in the management of the State.
These elements are either formulated by means of constitutional provisions, by judicial decisions, or through common law.

Laicity describes the result of the process of laicization. It can be defined as “a progressive development of social and political institutions with respect to the diversity of the moral, religious and philosophical preferences of citizens. With this development, freedom of conscience and religion are guaranteed by a neutral State with respect to the different conceptions of the good life, on the basis of commonly shared values that make encounter and dialogue possible [translation]” (citing Comité des affaires religieuses [Religious Affairs Committee], 2003, p. 21).

Therrien furthermore describes laicity as “rest[ing] upon individual rights” and as “impos[ing] itself upon institutions so that individuals may be able to fully enjoy their rights and freedoms.” Emphasizing its underlying commitment to individual freedom of conscience and religion, she argues: “Laicity defined in this way is quite different from laicism, a doctrine which aims to remove religion, in all its manifestations, from the entire public sphere” (Therrien, 2009, p. 67).

[169] The French variant of modern républicanisme in which civic identity, as a citizen of the republic,
is to ideally supercede and replace other more local, cultural and religious identities is exemplary
in this respect. Not all republican political philosophies, however, concur in this respect.

[170] It is common belief, particularly among Canadian social and political elites, and some government policy makers (see Biles and Ibrahim, 2005; Bramadat, 2005; Gaye and Kunz, 2009), that Canada has a disestablisment clause in its Constitution, affirming Canada’s commitment to secularism and a separation of church and state, as in the American (First Amendment) example. This is simply incorrect. Seljak et al. (2008) argue that the absence of a constitutional clause requiring church/state separation or neutrality makes relations between church and state in Canada open to considerable policy/political challenge and change (albeit within limits set by the Charter of Rights and Freedoms). Indeed, many have argued, co-operation has been the norm. However, freedom of conscience and religion jurisprudence under section 2(a) of the Charter does pose limits on the extent that such arrangements are open to transformation. Though not explicitly stated in the Constitution, on many occasions the Supreme Court of Canada has inferred and affirmed a duty of religious neutrality of the state as a consequence of section 2(a) and s.15 of the Charter, protecting freedom of religion and religious equality (see for example S.L. v. Commission scolaire des Chênes, 2012 SCC 7).

[171] These include:                       

(1)    Section 76 of British Columbia’s School Act, R.S.B.C. 1996, c. 412, which is unique in stating in 76(1): “All schools and Provincial schools must be conducted on strictly secular and non-sectarian principles.”

(2)    Article 1 of the federal Cultural Property Export and Import Act, R.S.C. 1985, c. C-51, which mentions ”religious or secular” property in its definition of ”cultural property”

(3)    Schedule 1 of Quebec’s Act Respecting Industrial Accidents and Occupational Diseases, 2010, G.O. 2, 3190, which refers to “…the operation of lodging facilities for the members of religious communities or for secular priests” [at para61110] (harking back to Catholic canon law uses in the Middle Ages)

(4)  Section 4 of a Regulation under Ontario’s Education Act, R.R.O. 1990, Reg. 298, which states that opening or closing school exercises may include singing “God Save the Queen”
[s. 4(2)] and “Scriptural writings including prayers” [s. 4(2)(1)], as well as “Secular writings”
[s. 4(2)(2)] that impart social, moral or spiritual values and that are representative of Ontario’s multicultural society.

[172] Novak, 2006, p. 114.

[173] Ibid.

[174] Canada’s strategy for managing religious diversity – legally, administratively and constitutionally – has been appropriately described as more of a “bricolage” of regionally-inflected institutional arrangements, which have been pragmatically (versus programmatically or philosophically) arrived at (Seljak et al., 2008). Showing this bricolage approach, the country’s foundational (1982) Constitution Act acknowledges in its Preamble that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” At the same time, s. 2(a) of the Charter of Rights and Freedoms guarantees “freedom of conscience and religion” as a ”fundamental right.” Though eluding neat classification, from a global and historical perspective, Canada’s approach most resembles a model of non-constitutional pluralism, where multiple faiths enjoy (albeit non-official) state support and recognition (Seljak et al., 2008). This is seen in the current protections for denominational school rights in the (1867 and 1982) Constitution Act and the Ontario Human Rights Code, as well as in things like state supported multi-faith chaplaincy services in state institutions (see earlier discussion of Canada’s historical “plural” but arms-length “shadow establishment”) (ibid.).

[175] See for instance Beaman (2008); Benson (2012); Calhoun (2008); Novak (2006); Seljak (2012); Woehrling (2011).

[176] Calhoun, 2008, p. 8 argues: “[v]iewing religion as a fully legitimate part of public life is a specific version of seeing culture and deep moral commitments as legitimate – and indeed necessary – features of even the most rational and critical public discourse”. Benson (2012b) argues that the link between religious diversity, accommodation and inclusion, and commitments to diversity more generally, is affirmed in the following passage from the Courts’ decision R. v. Oakes where Chief Justice Dickson discussed the “ultimate standard” of Section 1 of the Charter:

Inclusion of these words [free and democratic society] as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified

(R. v. Oakes (1986) 1 S.C.R. 103 per Chief Justice Dickson).

The Supreme Court of Canada decision in Trinity Western University v. British Columbia College of Teachers makes a similar connection between religious inclusion and Canada’s commitment to diversity. The decision states, on behalf of the majority of eight judges: “The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected” (Trinity Western University v. British Columbia College of Teachers [2002] 1 SCR 772 at 812).

[177] Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710.

[178] Section 76 of British Columbia’s School Act, R.S.B.C. 1996, c. 412, s. 76, is unique among Canadian statutes in explicitly stating in 76(1): “All schools and Provincial schools must be conducted on strictly secular and non-sectarian principles.” Until Chamberlain (ibid.) in 2002, the court had not defined “secular” in section 76 of the B.C. School Act. This case involved a controversy generated during a school board approval process for three storybooks featuring same-sex parents (as educational resource material) for use in kindergarten and grade 1. When the Surrey school board voted against approving the books out of concern that the books would raise concerns for some parents, the two teachers who first proposed introducing them (both members of Gay and Lesbian Educators of B.C.) applied for judicial review of the board decision, arguing, among other things, that it had inappropriately based its decision on religious concerns. The case was heard at the B.C. Supreme Court, and then appealed at the B.C. Court of Appeal, before finally making its way to the Supreme Court of Canada (see Buckingham, 2012 for in-depth analysis of each court’s decision, as well as Benson, 2004).

The B.C. Court of Appeal overturned Justice Saunders’ B.C. Supreme Court decision which stated at para. 78 that “In the education setting, the term secular excludes religion or religious belief.” Justice Mackenzie, writing for a unanimous B.C. Court of Appeal, found “to interpret secular as mandating ‘established unbelief’ rather than simply opposing ‘established belief’ would effectively banish religion from the public square,” (at para. 30) and also that “No society can be said to be truly free where only those whose morals are uninfluenced by religion are entitled to participate in deliberations related to moral issues of education in public schools” (at para. 34). While the Supreme Court overturned elements of this decision, it upheld the inclusive understanding of the secular. It held that operating in a strictly secular way meant that the school board could not allow the concerns of one group of parents to deny equal recognition to the family models of other members of the school community.

[179] Dictionary of Canadian Law 4^th edition at 1168.

[180] Words and Phrases, 2008 at 25036.

[181] R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295

[182] Quoting Chief Justice Dickson in R. v. Big M Drug Mart Ltd at para. 94. Of course, this right, like all others, is subject to Section 1 limitations and must be balanced with the rights of others (for example, to non-discrimination or non-coercion).

[183] R. v. N.S. 2012 SCC 72.

[184] Ibid., at para. 2.

[185] Supra note 8.

[186] The applicants, who identify as atheists, alleged that the Niagara District School Board’s original and amended policies concerning the distribution of religious texts were discriminatory because of creed, contrary to the Ontario Human Rights Code. The original policy allowed only the Gideons to distribute Gideon Bibles to grade five students with parental consent. The amended policy granted discretion to approve the distribution of other “religious publications” with parental consent. However, in practice, only Gideon Bibles had been distributed. The Ontario Human Rights Commission intervened in the case.

In its Decision, the Tribunal found that protection against discrimination based on creed extends to atheism. The Tribunal also found that not every exposure to religion in schools violates rights under the Code. As Associate Chair, David Wright, stated:

In my view, optional religious activities outside the instructional day are permitted under the Code if all creeds are treated equally, there is no subtle or formal coercion to participate, and the school makes clear that it is not favouring any of them. Equal treatment without discrimination because of creed does not require that all activities relating to creed other than education about diverse religions be banished from the public schools. I agree with the respondent that, under a carefully developed policy that ensures equality between all creeds, it can permit distribution of religious and creed literature outside the school day with parental consent.

To find that there can be no promotion of religious ideas or practices in public schools for those who want to participate in them would be to prohibit activities like optional religious clubs in high schools or the provision of prayer rooms. In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces. Indeed, such a policy could be contrary to Code values of diversity and inclusion. Creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed (R.C. v. District School Board of Niagara, supra note 8, at para. 59-60).

[187] Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772.

[188] Berger, 2002, p. 52 argues that these core values, though “institutionally unidentified,” exist
in Canadian law and can be “teased out from the fabric of the Charter of Rights and Freedoms” –
human dignity, autonomy and security. Taylor (2010) alternatively describes the civil norms structuring contemporary liberal democratic societies as (1) human rights, (2) equality and non-discrimination, and (3) democracy. Bhabha (2012) looks at the more self-conscious embrace, in such recent decisions as S.L. (supra note 170) of what he calls “secular diversity” as an ultimate Canadian value. These are not neutral procedural norms, but substantive liberal values that are in fact (even if not recognized as such) the basis of “a fighting creed” (Berger, 2002, p. 45, citing Taylor, 1995, p.249). Bhabha (2012) also argues that these core liberal civic values are not simply one set of values among others, to be ”balanced” in an equilibrium (e.g. by a proportionality test). Instead, they are “hypergoods” or supreme values, providing the normative framework and basis for evaluating and mediating between competing moral claims and rights scenarios.

[189] For example, Berger, 2002, 62 argues:

[W]here religious conscience demands actions that are dissonant with the civic concern for the fundamental tenets of our society, principally human dignity, autonomy, and security, these actions do not attract the protection of the Charter.

In his review of legal trends in Canadian religious freedom case law, Bhabha (2012) notes a growing tendency among Supreme Court Justices of “attaching caveats at various opportunities” to the broad construction of religious freedom since Amselem (supra note 137), by articulating and highlighting
“non-negotiable” Canadian values. Justice Abella argues, “Not all differences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their expression are arbitrary,” in Bruker v. Markovitz, [2007] 3 S.C.R. 607 at para. 2. (cited in Bhabha, 2012). The OHRC’s (2012) Policy on competing human rights similarly highlights the important mediating role underlying constitutional and societal values play in reconciling competing rights (see OHRC Policy on competing human rights, Section 5.4.2).

[190] Stein (2009).

[191] See the OHRC’s Policy on competing human rights and The Shadow of the Law case law review of competing rights jurisprudence.

[192] See for instance Benson (2012b). Both Andre Schutten (2012) and Iain Benson (2012b) take issue with court and tribunal interpretations of the limitations on the statutory defence in ss. 24(1) of the Code enabling “special employment,” in the context of religious organizations. They argue that prevailing interpretations of ss. 24(1) limit on the right of religious organizations to hire persons of the same faith and impose religious conditions on their employment, are overly restrictive, and fail to adequately protect the positive associational rights that form a core basis of this provision.

[193] Some people draw inspiration from the liberal political theory of John Rawls, who argues for a liberal society that is neutral with respect to the good life, uniting only around a strong procedural commitment to treat people with equal respect.

[194] See Chiodo (2012a) for an argument in favour of this view (what she calls pluralistic liberalism, or “modus vivendi”, drawing on the political philosophy work of John Gray). Chiodo also draws on the earlier work of Iain Benson in this regard (Chiodo, 2012a, p. 15).

[195] Legal scholars and practitioners arguing for minimal restrictions on religious practice in public life argue that citizens with religion-informed ethical and moral positions have just as much right to interpret and contribute creating and transforming those core Canadian values, from a distinctly religious perspective, as any other citizens. As well, Canadian political philosopher Charles Taylor (2010) points out that such core values as dignity, equality, liberty and fraternity may be not only diversely interpreted, but also diversely sourced, in terms of the sources of inspiration informing their embrace (religious or
non-religious). Calhoun notes that the ideas of freedom, emancipation and liberation, emerged largely from religious discourses in Europe (Calhoun, 2008; citing Habermas, 2006).

[196] The Code requires non-discrimination and equality of treatment – which includes a duty to accommodate religious belief and practice – in five social areas: services and facilities, employment, housing accommodation, contracts, and professional and vocational associations. All of these social areas interface with (indeed find their dominant expression in) the public sphere.

The courts somewhat acknowledge a public/private distinction in Code and Charter jurisprudence that distinguishes between the right to hold beliefs, and the right to act on those beliefs (the latter being broader than the former). However, this happens only in a secondary and indirect way, to the extent that the rights of others (and broader constitutional values) come into play once one enters the public square.

[197] See the OHRC’s Policy on competing human rights for the OHRC’s approach to rights conflicts in this respect. See the OHRC’s Policy and guidelines on disability and the duty to accommodate for more on undue hardship and bona fide requirements. While constitutional values in competing rights scenarios are an acknowledged additional potential basis for delimiting creed rights as discussed in the OHRC’s Policy on competing human rights, these constitutional values themselves are generally understood to be consistent with the Code’s aim to promote diversity and inclusion (in keeping with the open model of secularism).

[198] See Benson (2012b).

[199] Quoting Chiodo, 2012a, p. 10. Drawing attention to some of the ways appeals to secular neutrality can exclude religious citizens, Seljak et al. (2008) observe:

[P]olitical philosophers have begun to argue that to forbid religious discourse in the public sphere – a priori – is a violation of the rights of members of religious communities and contrary to liberal democratic philosophy. They argue that the requirement to translate their religious discourse into a secular idiom in order to participate in a putatively “value-free” public sphere according to allegedly “neutral” rational rules places an unfair burden on members of religious communities. Such a requirement asks some Canadians – and not others – to sacrifice important elements of their identity and group solidarity (Seljak et al., 2008, p. 19) – of published document.

[200] Benson, 2013, p.15. In this article, Benson further notes how George Jacob Holyoake, the 19^th Century positivist champion who is often credited with coining the term “secularism,” explicitly acknowledged this dimension of faith or belief within non-religious even scientistic paradigms in the subtitle to his 1896 manifesto entitled English Secularism: A Confession of Belief (emphasis added). However, the idea that atheism is a “belief” is contested by such new atheists as Christopher Hitchens. While arguing of the new atheists that “[o]ur belief is not a belief” and that”[o]ur principles are not a faith,” Hitchens nevertheless acknowledges, “We do not rely solely upon science and reason, because these are necessary rather than sufficient factors…” (Hitchens, 2007, cited in Benson, 2013, p. 14). See also Benson, 2010; Benson, 2012a; Benson, 2012b; Chiodo 2012a).

Charles Taylor (2010) argues against this tendency to obscure “belief commitments,” however much supported by science. Instead, he argues it is important for all persons to recognize the ways their beliefs (religious or not) reflect deep evaluative commitments that are not in the least neutral or simply matters
of fact. In this respect, sociologist Craig Calhoun, 2008, p. 8 notes how secularism has often been understood “as though it were simply the absence of religion rather than the presence of a particular way of looking at the world or, indeed, as ideology”. He also notes how aspects of positivist ideology have been “tacitly incorporated” into modern political theories and uses of the secular, despite conventional (everyday, common sense) renderings of secular as “simply the absence of religion.”

[202] Supra note 177.

[203] Supra note 177 at para 137.

[204] Bhabha (2012). Highlighting the impossibility of absolute neutrality, and the grounding of all viewpoints and actions in “belief,” Benson, 2010, p. 23 provides the example of someone who chooses not to wear or display any religious symbols or identifications in public. “Not wearing a religious symbol”, he argues, “is just a somewhat more vague way of showing what one believes and doesn’t”.

[205] See Woehrling (2011) for extensive discussion.

[206] See Whoerling (2011). The relativity of the state duty of neutrality, in the Canadian legal context, is given explicit expression in Justice LeBel’s dissenting opinion in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650. The Justice observes (at para. 76): “an inflexible application of the principle of neutrality that fails to take the circumstances into account may prove to be inconsistent with the right to the free exercise of religion” (cited in Chiodo, 2012a, p. 13).

[207] Anticipating the court’s reasoning in S.L. v. Commission scolaire des Chênes (supra note 170), Charles Taylor (2010) argues that “the point of state neutrality is precisely to avoid favoring or disfavoring not just religious positions, but any basic position, religious or nonreligious” (Talyor, 2010, p. 25). Taylor reminds us that the deeper value commitments underlying Canadian secular democratic arrangements, are, after all, about “protecting people in their belonging and/or practice of whatever outlook they choose or find themselves in; treating people equally whatever their opinion; and giving them all a hearing” (2010). He argues that failing to do this, whether in the name of secularism, “civil religion, or anti-religion,” is to betray those very secular democratic principles (ibid.).

[208] Supra note 170

[209] Deschamps, J. writing for the majority in S.L. supra note 170 at para. 31.

[210] Deschamps, J. writing for the majority in S.L. supra note 170 at para. 30.

[211] Moon, 2008, p. 231. Cited by Deschamps, J. at para. 30, writing for the majority (McLachlin C.J. and Binnie, Deschamps, Abella, Charron, Rothstein and Cromwell JJ) in the S.L. Supereme Court Decision (supra note 170).

[212] Cited in Chiodo (2012a). Bhabha (2012) commends the S.L. decision (supra note 170), in this respect, for explicitly embracing the value of what he calls ‘secular pluralism’ (respecting not just religious but cultural differences of all kinds in Canada’s multicultural society), and for not shying away from, or concealing, the inevitability of normative (versus falsely ‘neutral’) assessments of the limits of individual rights and freedoms, and the background norms out of which these very rights and freedom grow. In this context, he argues, “the Court may be moving, slowly but surely, towards a theory of religious freedom that is defined and shaped by the normative priority of respecting difference in a multicultural society”
(p. 14). He sees this as a departure from the historical legal norm in Canada of protecting religious diversity, not for reasons of multicultural diversity, but for reasons of upholding equality between religions.

[213] For example, see Chiodo (2012a) and Buckingham (2012) for analyses of legal decisions that exhibit this less inclusive understanding of the secular.

[214] The fact that Canadian public culture remains latently structured by liberal Protestant norms is neither exceptional (from a global historical perspective (see Beyer, 2008) nor necessarily troubling, as a historical fact, given Canada’s historical development and religious make-up. More problematic, however, is the failure to recognize this fact, as a result of a widespread assumption among Canadians that secularism and its increasing separation of church and state and privatization of religion has resolved the problem of religious intolerance and discrimination in the present era. Rather than providing a bulwark against discrimination, Seljak et al., 2008, p. 14 in fact argues, strict ideological adherence to secularism (perceived as neutral) may further engender and promote intolerance and discrimination, as “[m]inority communities find their own needs unmet while the needs of the Christian majority are – for the most part at least – already met by the culture and structures of our public institutions”.

[215] For more on the concept of structural discrimination and religious disadvantage as a consequence of lingering Christian privilege in contemporary Canadian secular institutions and structures, see Seljak et al. (2008); Beaman (2008); and Beyer (2008). The failure to recognize the structural privileges and accommodations that already exist, by default, for the majority group is often compounded by the dominant Canadian self-image as tolerant, egalitarian, open and multicultural.

[216] Craig Calhoun (2008) observes, from a global sociological vantage point that could equally apply to Canada, that to exclude religion in public life “is arguably to privilege a secular middle class in many countries, a secular ‘native’ majority in Europe, and a relatively secular white elite in the U.S. in relation to more religious Blacks, Latinos, and immigrant populations” (Calhoun, 2008, p. 13). Looking to the Canadian future, Seljak et al. (2007) similarly predicts:

[A]nti-immigration – and worse anti-immigrant discourse – will increasingly be constructed in terms of the need of a putatively secular, democratic, egalitarian and enlightened society needing to protect itself from religious communities identified with immigrant populations and imagined as regressive, anti-democratic, authoritarian and irrational (Seljak et al., 2007, p. 29).

[217] Scholars further observe that not recognizing or including religious minority communities in mainstream Canada can and has led to segments of the community adopting a defensive “fortress mentality” that sees fellow mainstream Canadians and government as a “hostile and dangerous ‘other,’
to be feared, resisted and avoided” (Seljak et al., 2007, p. 18). In their study of youth radicalization in Canadian Judaism, Christianity, Islam, Hinduism and Sikhism, Paul Bramadat and Scott Wortley (2008) highlight inequality, discrimination and marginalization as key factors contributing to youth religious radicalization. They contrast the importation model, that assumes religious extremism is imported into western countries, with the strain model that emphasizes conditions faced by immigrants and minorities within host societies. While both factors can play a role, their study suggests that “perceptions of social injustice, along with associated feelings of anger, despair, and alienation may provide young people with the motivations/justifications they need to participate in both crime and religious extremism.”

[218] Seljak et al. (2008) suggests there the risks of a militant secularism and not recognizing the adverse impacts resulting from a residually Christian, and, in some cases increasingly anti-religious and closed structuring of contemporary secular institutional norms and arrangements, include:

• Alienating and preventing the integration of ethno- religious minority communities by “refusing to acknowledge or respect the public elements of their religious traditions” (Seljak et al., 2008, p. 6) and conveying to such communities that their religious practices and identities are incompatible with Canadian identity and citizenship; and as a consequence
• “Encouraging the creation of religious “ghettoes” – closed ethno-religious communities that have relatively little connection to the rest of Canadian society and, potentially, religious radicalization and disengagement from Canadian public life (Seljak et al., 2008, p. 19).

[219] Saul (2008).