Policy framework
Creed is a prohibited ground of discrimination under the Ontario Human Rights Code. The fact that Ontario adopted the term creed (or "la croyance" in French) in its human rights legislation, and not another term (such as religion, religious belief or religious creed as used in other Canadian human rights statutes), is significant when interpreting its meaning. It suggests that creed may have a meaning that is distinct from these other closely related terms.[65]
The Code does not define creed. Understandings of creed and what are considered creed-based beliefs and practices evolve over time, as do forms of discrimination based on creed.
Creed means different things to different people. During its consultation, the OHRC heard about some of the limitations of this term. For some people, including some Indigenous people and others belonging to minority cultural and spiritual traditions, “religion” or “creed” were not terms they would use to describe their beliefs, despite being protected under this Code ground.[66]
Over time, human rights protections under the Code ground of creed have been extended to an increasingly broad range of people’s beliefs and practices, including those that are not connected to any organized formal religion, sacredly held scriptures, official doctrines or institutional authorities.
This policy interprets the protections of the Code in a broad and purposive way (in other words, in a way that reflects the spirit and intent of the Code). This approach is consistent with the principle that the Code's quasi-constitutional status requires that it be given a liberal interpretation that best ensures its anti-discrimination goals are reached.
4.1 What is creed?
Under the Code, creed includes, but is not necessarily limited to, "religious creed" or "religion.”[67]Given the evolving nature of belief systems over time and the need to apply a liberal and purposive interpretation to Code protections for creed, this policy does not provide a universal, "once and for all" definition of creed.[68] However, the following characteristics are relevant when considering if a belief system is a creed under the Code. A creed:
- Is sincerely, freely and deeply held[69]
- Is integrally linked to a person’s self-definition and spiritual fulfilment[70]
- Is a particular, comprehensive and overarching system of belief that governs one’s conduct and practices[71]
- Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence[72]
- Has some “nexus” or connection to an organization or community that professes a shared system of belief.[73]
If uncertainty still exists after considering the above criteria, the overall purpose of the Code and statutory human rights law more generally should be considered.[74]
Religion is typical of the kinds of beliefs and practices that are protected under the Code ground of creed.[75] The Supreme Court of Canada has said that while it is not possible to define religion precisely, religion can be distinguished from convictions and practices that are “secular, socially based or conscientiously held.”[76] In Amselem,[77] the Supreme Court defined religion broadly to typically include: “a particular and comprehensive system of faith and worship;” “the belief in a divine, superhuman or controlling power;” and “freely and deeply held personal convictions or beliefs” that are “connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfilment.” Practicing such beliefs allows the individual “to foster a connection with the divine or with the subject or object of that spiritual faith.”[78]
To be recognized as a religion or creed under the Code, a belief in a God or gods or a single supreme being or deity is not required. Religion or creed includes the spiritual beliefs and practices of Indigenous cultures. Also, newer religions or creeds may be included (as assessed on a case-by-case basis considering the above factors).[79]
Example: A labour arbitrator found that an employer should have accommodated an employee who followed the Rocky Mountain Mystery School belief system by allowing time off to attend a pilgrimage to the Rocky Mountains. In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged. [80]
Organizations should accept in good faith that a person practices a creed, unless there is significant reason to believe otherwise. Courts and tribunals have generally been hesitant to rule out beliefs as creeds at the outset of proceedings where a human right based on creed has been claimed.
At the same time, not every belief, opinion, expression, practice or matter of conscience is a creed under the Ontario Code. Unlike some other jurisdictions, Ontario’s Code does not include a ground for political belief or conviction. To date, no tribunal or court has found a political opinion or belief to be a creed under Ontario’s Code. However, some decisions have left open the possibility that a comprehensive political or philosophical belief system may be equivalent to a creed under the Code.[81] Persons with political beliefs that substantially intersect with creed beliefs may also receive protection under the Code, where creed is an element of their discriminatory treatment.[82]
Example: The Ontario Divisional Court, confirmed by the Court of Appeal for Ontario, found a person’s views on the Israel-Palestine conflict were not a creed under the Code, but rather a political opinion on a single issue. The Court acknowledged that there was a diversity of dictionary definitions of creed, and some included secular belief systems. The Court further 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.[83]
Where there is sufficient reason to believe otherwise, objective inquiry may sometimes be required to establish the existence of a creed.[84] This is usually only in rare cases. In such cases, the above criteria should be considered. It may not be enough for a person to sincerely believe that they have a creed to establish that they in fact have one for purposes of Code protection.[85]
When determining if a creed exists, it is generally not relevant to evaluate the "quality" of the belief system, whether it is "reasonable" or would withstand scientific scrutiny.[86]
Example: A Chinese Seniors’ Association was found to have engaged in discrimination based on creed when it revoked a woman’s membership because she practiced Falun Gong. The HRTO rejected the Association’s argument that Falun Gong is akin to a “cult” and should not therefore be protected as a creed under the Code. The HRTO stated: “It is not for the Tribunal to determine whether or not a belief system is reasonable, whether it would withstand scientific scrutiny, or whether it espouses beliefs that are consistent with Charter values.”[87]
The Courts and HRTO have also cautioned against using "Western" or "mainstream" standards and understandings of what a religion or creed looks like when assessing if a belief system is a religion or a creed under the Code or Charter.[88]
Example: Falun Gong was found to fall within the notion of “creed” under the Code as a system of beliefs, observances and worship, despite its practitioners describing it as a “spiritual cultivation practice” as opposed to a “religion.” The HRTO based its decision in part on expert evidence explaining 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.[89]
4.2 Excluded practices
Human rights protections for creed do not extend to practices and observances that are hateful[90] or incite hatred or violence against other individuals or groups, or contravene criminal law.
Example: A school allows students to set up extra-curricular clubs based on shared interests, subject to an approval process. The school receives a request from several students to form a club based on extremist Christian, white supremacist creed beliefs. The school refuses the request saying that it does not have an obligation to allow members of such a creed to form a school club, and that such a club would poison the educational environment for others.
Example: A religious group believes in corporal punishment for religious reasons. Family members in the religious community cannot claim Code protection for actions that expose their children to extreme forms of neglect
and physical assault that violate criminal law.
The right to practice or express creed beliefs may also be limited when it interferes with other rights under the Code or Charter, or announces an intention to discriminate in a social area as prohibited under section 13 of the Code.[91]
[65] For a review of terms used in other jurisdictions, and the implications based on applicable principles of statutory interpretation, see Human rights and creed research and consultation report (Section IV, 2.1).
[66] During its creed consultation, the OHRC heard how the very term “creed” may denote and reflect a particular western, Christian historical understanding of religion and belief, with its emphasis on formal doctrine and written statements of belief (see Human rights and creed research and consultation report). It also heard, from the perspective of various Indigenous Peoples’ in particular, how the term tends to compartmentalize or single out what for many is lived and experienced as a holistic way of life.
[67] Several decisions have recognized the possibility of creed meaning more than religion. For instance, in R.C. v. District School Board of Niagara, the HRTO stated: “I rely upon the French translation of ‘creed’ in the Code, croyance. This reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views”: 2013 HRTO 1382 at para. 42, [R.C.]. See also Singh v. Security and Investigation Services Ltd. (31 May, 1977), Toronto (Ont. Bd. Inq., Cumming) [unreported], cited in Rand v. Sealy Eastern Ltd. (1982), 3 C.H.R.R. D/938 (Ont. Bd. Inq.) at para. 8373. In Singh, one of the earliest Ontario decisions dealing with creed, the Board, hearing the complaint of a Sikh man who was denied employment because of his beard and turban, described creed as derived from the Latin “credo” meaning “I believe,” and looked to the Oxford and Webster Dictionary definitions:
Oxford: Creed... “An accepted or professed system of religious belief: the faith of a community or an individual, especially as expressed or capable of expression in a definite formula.”
Webster’s: Creed …"Any formula of confession of religious faith; a system of religious belief, especially as expressed or expressible in a definite statement; sometimes, a summary of principles or set of opinions professed or adhered to in science or politics, or the like; as his hopeful creed.” [Emphasis in original.]
[68] As noted earlier, understandings of creed and what are considered creed-based beliefs and practices evolve over time, and differ cross-culturally, as do forms of discrimination based on creed. A flexible, principled approach to describing creed is taken here to allow for the Code to be given a broad, purposive, liberal and contextual interpretation. For a discussion of the challenges and limitations of any effort to provide a universal and precise definition of such terms as religion or creed, see Sullivan, W., supra note 42; Kislowicz, K. (2012). Trying to put an ocean into a paper cup: an argument for the “un-definition of religion” Canadian Diversity, 9(3), 29-32. Retrieved from www.ohrc.on.ca/en/creed-freedom-religion-and-human-rights-special-issue-diversity-magazine-volume-93-summer-2012/trying-put-ocean-paper-cup-argument-un-definition-religion; Sztybel, D. (2012, March 29-30). Giving credence to philosophical creeds: The cases of Buddhism and veganism. Paper presented at the Ontario Human Rights Commission/York University Legal Workshop on Human rights, creed and freedom of religion. Osgoode Hall, York University. Retrieved from https://docs.google.com/file/d/0BwFvhg37TTCjS1Awa1JSNkJZNWM/preview?pli….
[69] Amselem, supra note 5 at paras. 39, 46.
[70] Ibid. at para. 39. See also Richard Moon, “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497, at pp. 498-99 [Moon], cited in Loyola, supra note 8, at para. 44:
Underlying the [state] neutrality requirement, and the insulation of religious beliefs and practices from political decision making, is a conception of religious beliefs or commitment as deeply rooted, or commitment as an element of the individual’s identity, rather than simply a choice or judgment she or he has made. …If religion is an aspect of the individual’s identity, then when the state treats his or her religious practices or beliefs as less important or less true than the practices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual’s views and values, it is denying her or his equal worth [Footnote omitted; p. 507.]
[71] This draws on Amselem, supra note 5 at para. 39, where the court describes religion as “typically involv[ing] a particular and comprehensive system of faith and worship.” It also draws on descriptions of religion, for purposes of protection under section 2(a) of the Charter, in Edward Books, supra note 5 at para. 97 (“These beliefs govern one’s conduct and practices”), as well as in Bennett v. Canada (Attorney General), 2011 FC 1310 (CanLII) [Bennett]at para. 55 (“Is comprehensive, providing a telos, an overarching array of beliefs…”).
[72] This draws on statements in Edwards Books, supra note 5 and R.C., supra note 67. In Edwards Books, the Supreme Court of Canada alludes to the nature of beliefs protected under section 2(a) of the Charter (at para. 97):
The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices.
This also draws on indicators for religion discussed in Bennett v. Canada (Attorney General), 2011 FC 1310 (CanLII) at para. 55 rev’d. on other grounds 2013 FCA 161 such as:
- Addresses ultimate ideas...about life, purpose and death;
- Contains metaphysical beliefs which transcend the physical and apparent world;
- Contains a moral and ethical system;
- Is comprehensive, providing a telos, 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.
While this policy recognizes the distinctness of religious beliefs from other kinds of beliefs, the criteria here do not preclude the possibility of a comprehensive non-religious belief system being a creed under the Code.
[73] Legal decisions have discussed the collective dimension of religion and creed. Most recently see Supreme Court of Canada decision in Loyola, supra note 8 at para. 60. However, this does not mean that people may not differ in how they understand or practice a professed system of belief (see section 9.3.2). Nor need this prevent persons from receiving human rights protections who may have unique or hybrid belief systems.
[74] According to the Supreme Court in Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), because of its quasi-constitutional status the Code and other human rights legislation must be given a large and liberal interpretation in light of both its context and objectives: [2000] 1 S.C.R. 665 at paras. 27-29, [Montreal (City)]; see also Ontario (Human Rights Comm.) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at 546-547 [O’Malley].
According to O’Malley, the Preamble of the Code is a guide to its nature and purpose. This states in part:
Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that 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.
[75] The Supreme Court of Canada has stated: “Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter”; Big M, supra note 5 at para. 123.
[76] Amselem, supra note 5 at para. 39.
[77] Ibid.
[78] Ibid.
[79] Courts and tribunals have recognized a wide variety of religious and spiritual beliefs under human rights legislation and the Charter, including Indigenous spiritual practices (see Kelly v. British Columbia (Public Safety and Solicitor General) (No. 3), 2011 BCHRT 183 (CanLII) [Kelly]), Wiccans (see Re O.P.S.E.U. and Forer (1985), 52 O.R. (2d) 705 (C.A.) [Forer], Raelians (see Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460 (CanLII) and Falun Gong practitioners (see Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII) [Huang]).
[80] Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, 195 L.A.C. (4th) 217, [2010] C.L.A.D. No. 298 (QL).
[81] See for instance Jazairi v. Ontario (Human Rights Commission), 1999 CanLII 3744 (Ont. CA) [Jazairi ONCA], and Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII).
[82] In Al-Dandachi v. SNC-Lavalin Inc., ibid., the Ontario Superior Court of Justice refused a defendant’s motion to strike a human rights claim in a civil action. The plaintiff alleged that he was dismissed from his employment because he expressed views about the armed conflict in Syria which were inextricably linked to his identity as a Syrian Canadian and a Muslim. The employer argued that the man’s claim was in essence one of discrimination based on his political views and the Code does not cover this. The Superior Court cited the Court of Appeal in Jazairi ONCA, ibid., and found that the Court of Appeal expressly left open the possibility that some other system of political opinion could amount to a creed. It also noted that the claim made a link between the dismissal and the man’s views as a person of Syrian origin whose religious beliefs are against extremism. Therefore, the Court was unable to conclude that it was plain and obvious the claim could not succeed.
[83] Jazairi v. Ontario (Human Rights Commission), [1997] CanLII 12445 (Ont. S.C.) at paras. 34, 39, 40. [Jazairi ONSC]; aff’d Jazairi ONCA, supra note 81. The Court of Appeal for Ontario upheld the original decision, and confirmed the importance of assessing each creed claim on its own facts. The Court of Appeal 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. It commented that it would be a mistake to deal with such important issues in the abstract. See Jazairi ONCA at para. 28.
[84] See section 9.6 for more about information to be provided, including appropriate nature and scope of such inquiry.
[85] While the subjective approach to freedom of religion confirmed in Amselem suggests that it is a person's personal understanding of their religion or creed that is at issue, not what others say or do, provided this is sincerely held, this does not rule out objective inquiry into whether a person's belief or practice is sufficiently connected to a religion or creed in the first instance (see sections 9.5. and 9.6). See also Bennett, supra note 71 at paras. 7-8, citing Amselem, supra note 5 at paras. 50, 42, 39.
[86] In Huang, supra note 79, the Respondent unsuccessfully disputed that Falun Gong is a creed on this basis.
[87] Ibid, at para. 34. The HRTO clarified at paras 32-34:
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.
As the Commission points out, courts and human rights tribunals have generally been careful not to judge the validity of sincerely held religious beliefs…
It is not for the Tribunal to determine whether or not a belief system is reasonable, whether it would withstand scientific scrutiny, or whether it espouses beliefs that are consistent with Charter values.
[88] See Huang, ibid. This could lead to the exclusion of a number of valid religions and creed-based practices such as those that are not “monotheistic,” lack authoritative sacred texts, or are considered “pagan” or “new” religions. For example, in Forer, supra note 79, Wicca was found to fall within the meaning of the term “religion” in a collective agreement. This labour arbitration decision adopted “a broad, liberal and essentially subjective” approach to religious observance set out in an earlier Ontario Court of Appeal decision. 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.
[89] Huang, supra note 79.
[90] The Supreme Court has affirmed a high threshold for what may be considered “hatred” in the context of human rights legislation prohibiting hate speech. A definition of hatred in the context of legislative provisions prohibiting hate speech is set out in Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467 at para. 59. The Court summarized the requirements stating:
In light of these three principles, where the term “hatred” is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.
Hateful practices may also be subject to provisions of the Criminal Code.
[91] Section 13(1) of the Code prohibits the publication or public display of any notice, sign, symbol, emblem or other similar representation that indicates an intention to infringe a right (discriminate) under a social area (for example, the publication of intent to deny housing, employment or services such as access to a restaurant or retail store because of an individual’s race, religion or other enumerated ground). However, this provision is not to interfere with freedom of expression of opinion (as stated in section 13[2]).