Setting the context
In 1996, the Ontario Human Rights Commission (OHRC) published its first formal Policy on creed, a ground that has been part of the Ontario Human Rights Code (the Code) since its beginning over 50 years ago. There have been many important legal and social developments since then.
Questions about the appropriate nature and limits of rights relating to religion and creed have increasingly assumed centre stage in public life, as Ontario society has grown increasingly more religiously diverse.[1]
This policy aims to help Ontarians better understand and respond to diversity based on creed in ways that are inclusive and protect human rights (see section 2 below for more about this policy and its aims). It provides a timely reminder of our need to respect human rights in a time of great discussion of the role of creed and religion in our society.
Since 2011, the Ontario Human Rights Commission (OHRC) has conducted extensive research and consultation to update its understanding of creed human rights under the Code.[2] The OHRC’s Human rights and creed research and consultation report presents many of these findings.[3]
The OHRC’s research and consultation shows that prejudice and discrimination based on creed remain a reality in Ontario, and are on the rise in some cases.
Many experts say that how a society treats religious and creed minorities indicates its tolerance towards difference and diversity in general.[4] Freedom and equality rights based on religion and creed are core elements of a free and democratic society. [5]
“[R]espect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy.” – Supreme Court of Canada[6]
[H]arassment or discrimination against someone because of religion is a severe affront to that person's dignity, and a denial of the equal respect that is essential to a liberal democratic society. – Human Rights Tribunal of Ontario (then known as the Ontario Board of Inquiry)[7]
The human right to be free from discrimination based on creed is not only a right of the religious or those who actively follow a creed, but also a right all people depend on in a society that allows for and respects pluralism, human rights, and the right to hold and manifest different beliefs.[8] It is a core part of what enables a diverse plural society such as ours to work.[9]
It is thus particularly important from a human rights perspective that everyone upholds and understands the right to be treated equally based on creed – as a human right under the Code, and as a fundamental constitutional right under the Charter that reflects core Canadian constitutional values and secular commitments.
At the same time, this policy recognizes that no right is absolute and every right, including rights based on creed, may be subject to reasonable limits, in balance with other competing rights. [10]
[1] The numbers of Ontarians practicing religions and creeds other than the historically dominant Protestant and Catholic denominations and/or identifying with no religion or creed at all have significantly expanded. A 2013 Pew Forum study of religious demographic trends in Canada found that Ontario has experienced the greatest increase in persons affiliated with minority religions among provinces in Canada. The share of Ontario residents identifying with faiths other than Protestant or Catholic has risen from about 5% in 1981 to 15% in 2011. Pew Research Center’s Forum on Religion & Public Life. (2013). “Canada’s Changing Religious Landscape: Overview”. Retrieved July 15, 2013 from www.pewforum.org/Geography/Canadas-Changing-Religious-Landscape.aspx).
As well, more people of all faiths are understanding and practicing their faith in individual ways. These social and demographic trends are projected to accelerate in the future. For more on such social and demographic trends in Ontario and Canada, see the OHRC’s Human rights and creed research and consultation report.
[2] In January 2012, the OHRC hosted a Policy Dialogue on human rights, creed and freedom of religion 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. Papers from the event, which brought together community partners, academics, legal professionals and human rights and diversity practitioners, were published in a special issue of Canadian Diversity. Several essays on human rights and creed were also presented at another major consultation event (“Legal Workshop”) in March 2012, at York University’s Osgoode Hall Law School, hosted in partnership with York University’s Osgoode Hall Law School, Centre for Public Policy and Law and the Centre for Human Rights. These are also available on the OHRC website. The OHRC conducted several focus groups and interviews, as well as an online survey of the general public in 2013 and 2014. A summary of the survey results is available on the OHRC's website. A Creed Case Law Review, conducted in 2012, is also available on the OHRC website.
[3] The OHRC's Human rights and creed research and consultation report is available on the OHRC's website.
[4] See for example Grim, B. J. & Finke, R. (2011). The Price of Freedom Denied. New York: Cambridge University Press.
[5] Canada’s highest Court has repeatedly affirmed the key place of religious freedom and equality rights based on creed at the centre of Canada’s liberal democratic legal tradition. For instance, the Supreme Court of Canada has stated:
“A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct...If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.” (R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at paras. 94-95, [Big M]; See also Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, [Amselem]; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 759) [Edwards Books].
[6] Amselem, ibid. at para. 1.
[7]Dufour v. J. Roger Deschamps Comptable Agréé (1989), 10 C.H.R.R. D/6153 (Ont. Bd. of Inquiry) [Dufour] at 617.
[8] For instance, the Supreme Court of Canada stated in Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at paras. 47-48, [Loyola]:
Religious freedom must therefore be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights….A pluralist, multicultural democracy depends on the capacity of its citizens “to engage in thoughtful and inclusive forms of deliberation amidst, and enriched by,” different religious worldviews and practices: Benjamin L. Berger, “Religious Diversity, Education, and the ‘Crisis’ in State Neutrality” (2014), 29 C.J.L.S. 103, at p. 115.
At para. 45, the Supreme Court also quoted from a European Court of Human Rights decision in Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A:
“Freedom of thought, conscience and religion…is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it” [p. 17].
[9] “[A] multicultural multireligious society can only work…if people of all groups understand and tolerate each other”: Loyola, ibid at para. 47, quoting Adler v. Ontario, [1996] 3 S.C.R. 609 at para. 212, McLachlin J. (as she then was), dissenting in part.
[10] In the first major Supreme Court decision on freedom of religion under the Charter, R. v. Big M Drug Mart Ltd., the Court set out both the essence of the right to freedom of religion and its limits "as are necessary to protect public safety, order, health, or morals or the fundamental right and freedoms of others". The Court then further qualified the appropriate scope of such limits under the Charter, in effect safeguarding constitutional rights from limits on the basis of “majority values”:
What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority” (Big M, supra note 5 at 337).
For more on the nature of limits on rights in light of core constitutional values and state interests, see Loyola, supra note 8 at paras. 45-47.