III. Background and context

This section examines broader underlying trends shaping contemporary forms of discrimination because of creed. While the OHRC seeks to combat prejudice and intolerance based on creed, and related -isms and -phobias, by educating the public, not all of the issues discussed below can be dealt with under the Code. The Code only prohibits incidents of discrimination and harassment based on creed in specified “social areas.” These areas are:

  1. Contracts
  2. Employment
  3. Goods, services and facilities
  4. Housing
  5. Vocational associations and trade unions.

Intolerance vs. discrimination

Intolerance and prejudice refer to attitudes, values and beliefs. Discrimination refers to actions taken because of those attitudes, values and beliefs, as well as unfair treatment that may unintentionally result from seemingly neutral rules, norms, standards and practices that people can take legal action on under the Ontario Human Rights Code or Canadian Charter of Rights and Freedoms.

Key questions

  • What are some of the significant factors and dynamics, past or present, that shape contemporary forms and experiences of discrimination based on creed in Ontario?

  • What forms of exclusion and discrimination are communities in Ontario experiencing because of creed?

  • Are there particular or prevalent ideologies, myths, and/or stereotypes underlying contemporary forms of discrimination based on creed that an OHRC policy should name and address? 

1. Current social and demographic trends

1.1 Diversity of creed beliefs and practices

Canadian census-based demographic research on religious affiliation in Ontario shows a significant growth in religious and creed diversity. Two major trends are particularly notable. First, there is significant growth among religious minority groups of all kinds outside of the Christian (Catholic and liberal Protestant) mainstream (see Appendices 1-7) for statistical trends by religious affiliation in Ontario and Canada).[15] At the same time, there is notable growth in the numbers of Ontarians reporting that they have ‘no religion’ (see Appendices 1-5, 12-15)[16] and/or for whom religion is playing a decreasing role in their lives (see Appendices 16-21). Both of these broader trends are projected to accelerate in the future,[17] due in part to immigration trends[18] and ongoing processes of secularization.

An overwhelming majority of Ontarians nevertheless remain, and are projected to remain, identified with the historically dominant Roman Catholic and Protestant (Anglican, United Church, Presbyterian, and Lutheran) churches in Ontario (see Appendix 3).[19] The face and practice of Canadian Christianity, however, is becoming increasingly more diverse, as the percentage of Christian Canadians born in non-Western countries continues to grow,[20] along with the numbers of adherents of minority Christian denominations favouring more public and collective expressions of Christianity.

Tracking religion in Ontario 1991 – 2001 - 2011

The largest population growth in Ontario between 1991 and 2001 censuses has been among Muslims (142.2% growth from 145,560 in 1991 to 352,530 in 2001), minority “Christian’” Protestant groups including people identifying as “Christians,” ”Evangelical,” ‘Born-again Christian” and “Apostolic” (121.2% growth from 136,515 in 1991 to 301,935 in 2001), Hindus (103.9% growth from 106,705 in 1991 to 217,560 in 2001), Sikhs (109.2% growth from 50,085 in 1991 to 104,785 in 2001) and Buddhists (96.4% growth from 65,325 in 1991 to 128,320 in 2001). The top five religious denominations in Ontario in 2001, in order of their numbers include: Protestant (3,935,745), Roman Catholic (3,866,350), No religion (1,809,535), Muslim (352,530), and Christian, including people identifying as minority Christian groups as listed above (301,935). National census data also reveals significant growth nationally, between 1991 and 2001, of people identifying with Aboriginal spirituality (+175%), or as “pagan” (+281%), although the actual number of adherents is not over 30,000 in these categories. [Source: Statistics Canada 2003a; see Appendices 1-11 for further profile and breakdown of Canadians by religious affiliation]

Though not entirely comparable with, or as reliable as, earlier census data, the 2011 National Household Survey shows continued significant growth, since 2001, of religious minorities, including Sikhs (72% growth from 104,785 in 2001 to 179,765 in 2011), Hindus (68% growth from 217,560 in 2001 to 366,720 in 2011), Muslims (65% growth from 352, 530 in 2001 to 581,950 in 2011), No religion (62% growth from 1,809,535 in 2001 to 2,927,790 in 2011), and Buddhists (28% growth from 128,320 to 163,750 in 2011).

Religious affiliation in Ontario in descending order by numbers and percentage (2011 National Household Survey) [21]


Population Number


1. Catholic



2. No religious affiliation



3. Other Christian



4. United Church



5. Anglican



6. Muslim



7. Hindu



8. Presbyterian



9. Christian Orthodox



10. Baptist



11. Pentecostal



12. Jewish



13. Sikh



14. Buddhist



15. Lutheran



16. Other religions



17. Traditional (Aboriginal) Spirituality



Total population in private households by religion



Note: Unlike in previous decades, when a religion question was included in the census, in 2011 it was part of a voluntary survey among 4.5 million randomly selected households. Roughly 2.65 million households participated in the survey. Statistics Canada has indicated that some groups – immigrants, ethnic minorities, non-English or non-French speakers and Aboriginal Peoples – may be underrepresented among participants in the voluntary survey. Despite these challenges, the 2011 National Household Survey (NHS) represents the best data source for religious affiliation in Canada in 2011 (Pew Forum 2013).

The total number of persons identifying as Christian (including all denominations) in the 2011 NHS was 8,167,295, or 64.55% of the total population. The number of persons identifying with Protestant denominations in the 2011 NHS, if we include “other Christian”, as well as United, Anglican, Presbyterian, Baptist, Pentecostal and Lutheran, was 3,892,965 or 30.77%. This would make Protestants the second largest religious grouping collectively, for the first time after Catholics.

1.2 Individual belief and practice

There is a debate in the social science literature about whether and to what extent religious conviction may be declining in Ontario (the “secularization debate”). Evidence exists to support various contending positions, showing both a general decline and, in some segments of the population, resurgence of religious conviction and identification (see Appendices 13-21 for various survey findings on the extent and importance of religious belief among Canadians).[22]

Ontarians, especially the younger generation, seem to be increasingly changing the way they interpret and live their professed religious and creed beliefs. Research suggests that many people now approach their religion or creed in a highly individual way, basing their beliefs and practices more on personal interpretations and experiences than on institutional expressions or traditional requirements of the faith.[23] This personalization of belief and practice has also contributed to a growing pattern of eclecticism – famously dubbed “Sheilaism”[24] by an American sociologist. This means that people increasingly “cobble together” their beliefs and practices from increasingly diverse sources and traditions in unique ways that can change with the context.[25]

This “de-institutionalization” of belief and practice is evident in the declining numbers of religiously-identified persons who are actively practising their faith in traditional institutional ways such as by attending regular worship (see Appendix 17).[26] The growth of persons self-identifying as “spiritual but not religious,” combined with the growing trend of Ontario institutions rebranding chaplaincy programs and services as “spiritual” rather than “religious”, are also among the indicators of this larger trend.

Spirituality vs. religion

Spirituality can be defined as “the search for meaning, purpose, and connection with self, others, the universe, and ultimate reality, however one understands it. It may, or may not, be expressed through religious forms or institutions.” Religion, on the other hand, tends to be “an organized structured set of beliefs and practices shared by a community related to spirituality” (Sheridan, 2000, p. 20; emphasis added).

1.3 Policy and program trends

"The challenges Canada faces today are different from those we faced ten years ago. The most obvious change concerns the salience of religion in debates about Canadian diversity ..." (Will Kymlicka) [27]

Despite increasing demands on Ontario institutions to better understand, respond to, and navigate the province’s growing religious/creed diversity, researchers lament the general failure of Canadian public policy, programming and research to sufficiently grapple with it.[28] While a legislative framework for dealing with creed diversity in Canada is well established,[29] researchers note that the prevailing tendency in policy and programming has been to subsume and erase differences of religion and creed under ethnic, cultural and racial categories of social difference, particularly since multiculturalism was introduced as state policy over 30 years ago.[30]

As a consequence, it has primarily fallen to the courts and tribunals to set the framework for dealing with religious and creed-based diversity in Canadian society, within a zero-sum (win or lose) legal system. In this context, the current work and role of the OHRC in updating its policy on creed takes on additional importance in helping citizens and organizations to negotiate differences and conflicts relating to religion and creed in a pro-active, principled way.

[15] A 2013 study of religious demographic trends in Canada by the Pew Forum found that Ontario has experienced the most significant increase in affiliation with minority religions among provinces in Canada (see Appendix 7). The share of Ontario residents who identify with faiths other than Protestantism or Catholicism has risen from about 5% in 1981 to 15% in 2011 (Pew Forum 2013).

[16] People identifying with no religion in Ontario in the 2001 census – 1,809,535 (or 16% of all Ontarians) – accounted for the third largest census denominational grouping after Protestant and Roman Catholic.
By 2011, according to the 2011 National Household Survey (NHS), close to a quarter of Ontario residents (23%) were religiously unaffiliated, as compared to 5% in the 1971 census. 

[17] See Appendix 8 for projected percentage change in religious affiliation in Canada from 2001 – 2017. According to the 2011 National Household Survey (NHS), the number of Canadians who belong to non-Christian religions – including Islam, Hinduism, Sikhism, Buddhism, Judaism, and Eastern Orthodox Christianity – has already reached 11% in 2011, up from 4% in 1981 (Pew Forum 2013). Of note, much of this diversity is projected to be concentrated in Ontario’s largest cities.

[18] See Appendices 9, 10, and 11 for historical data on immigration trends by religious affiliation.

[19] The 2011 National Household Survey shows a small decline in the percentage of Ontario residents reporting to be Roman Catholic (31.4% in 2011 as compared to 34% in 2001, and 35% in 1991) and that a longer-term downward trend continues in the numbers of Ontarians who report to be Protestant (30.8% in 2011 as compared to 35% in 2001 and 43% in 1991), particularly among mainline Protestant denominations (Anglican, United Church, Presbyterian, Lutheran) (Statistics Canada, 2003a). Catholics overtook Protestants as the largest denominational grouping in Ontario for the first time in the 2011 NHS.

[20] The percentage of Christian Canadians born in non-Western countries continues to grow. As Beyer, 2008, p. 23 observes:

Thus, the 2001 census revealed that people who simply identified themselves as Christian or who said they belonged to small Protestant groups, mostly without a previous history in Canada, had grown much more rapidly over the decade (~30%, from about 1 to 1.3 million) than the Roman Catholics, the mainline Protestants (who declined by 10%), the established conservative Protestant denominations, or even the Eastern Christians. Those among these "other Christians" who were born in non-Western countries increased by over 100%, commensurate with the growth in non-Christian religions over the same period. Analogously, although Roman Catholics increased by only 4%, their absolute numbers increased by around 600,000; and people born in non-Western countries accounted for over one-third of this growth. Therefore, as global Christianity is demographically becoming more and more a religion of the "south" [citing Jenkins, 2007], so can we expect that Canadian Christianity will continue transforming in a corresponding fashion.

[21] Source: Statistics Canada. 2013. Ontario (Code 35) (table). National Household Survey (NHS) Profile. 2011 National Household Survey. Statistics Canada Catalogue no. 99-004-XWE. Ottawa. Released June 26, 2013. www12.statcan.gc.ca/nhs-enm/2011/dp-pd/prof/index.cfm?Lang=E (accessed July 19, 2013).

[22] See Beyer (2006), “Religious Vitality in Canada: The Complementarity of Religious Market and Secularization Perspectives”.

[23] Roger O’Toole, 2006, p. 20 observes: “Canadians now choose to define the nature and content of their religiosity by drawing from that ‘reservoir of rites, practices and beliefs’ with which they are most familiar ‘without responding to any institutional prerequisites, or their consequences’. In these circumstances, their religion has generally acquired the fragmentary, syncretic, consumerist character associated with the term bricolage” (citing Yoye & Dobbelaere, 1993, p. 95-96). Based on their own empirical research, Peter Beyer (2008) and Paul Bramadat (2007) also observe how “[o]n the whole, youth of virtually all religious traditions are less loyal to these traditions and especially to the institutional expressions of these traditions (churches, mosques, temples, gurdwaras, etc.) than their age cohorts have probably been for many centuries if not millennia” (Bramadat, 2007, p. 120).

[24] In Habits of the Heart: Individualism and Commitment in American Life, Robert Bellah et al. (1985), coined “Sheilaism” to refer to a broader late 20th century trend in American religious conviction. Sheila Larson was a nurse whose self-defined faith included included being kind and gentle with yourself, taking care of others, believing in God, but without going to church, and seeing Jesus in oneself. For more on this trend in Canada, see Bramadat (2007); Beyer (2008); Closson James (2006); and O’Toole (2006).

[25]In this respect, Reginald Bibby, 1987, p. 85 argues that "[t]he gods of old have been neither abandoned nor replaced". Rather “they have been broken into pieces and offered to religious consumers in piecemeal form". Religious scholar, Closson James, 2006, p. 130 similarly concludes that “we should expect [religion] to continue to be characterized more by an eclectic spirituality... cobbled together from various sources rather than a monolithic and unitary superordinating system of beliefs”. The growth of mixed faith marriages in Ontario is also contributing to people adhering to more than one faith tradition at the same time, sometimes depending on the context. “In 2001,” one article notes, “nearly 20 per cent of people married someone outside their faith, according to Statistics Canada, up from 15 per cent two decades ago. Of that 20 per cent, Jews and Christians were the most likely to be in inter-religious unions...More than half of inter-religious unions in Canada were between a Catholic and Protestant (Noor, 2013).

[26] Seljak et al. (2008) highlight the significant transformations that have occurred since the first Gallup Poll after World War II asked Canadians if they had been in a church or synagogue sometime during the previous seven days. A full 67% of Canadians said they had (including 83% of Catholics). By 1990, positive response to the Gallup question had fallen to 23% throughout Canada (see also Byer, 2008). More recently, a 2011 Environics Institute Focus Canada Survey found that “[a]lthough the proportion with a religious affiliation continues to drop, these Canadians are as observant as ever in terms of attending religious services. Three in ten (29%) say they attend services at least once a week (up from 25% reported in Focus Canada in 2007, and 21% in 2003), while fewer now doing so only for special services (e.g., Christmas mass, Jewish High Holidays) (28%, down 5 points from 2007). Another one in five (22%, up 1) continue to say they have a religious affiliation but never attend services, with this group most prominently represented by Quebec residents and Catholics. In contrast, weekly attendance is most widely reported by Evangelical Christians (56%) and members of non-Christian faiths (42%)” (Environics Institute, 2011, p.40; See Appendix 17 for 2011 Focus Canada Survey Findings on Frequency of Attending Religious Services Among Canadians With Religious Affiliation 2003-2011).

[27] Kymlicka, Will (2003). “Introduction” In Canadian Diversity/Diversite canadienne May. Cited in Biles and Ibrahim, 2005, p.166.

[28] One recent study of federal public servants from several departments and agencies in the National Capital Region found among other things that: most policy practitioners and public decision makers were ill equipped to deal with religious diversity and most policies and programs did not consider religious diversity, with a few exceptions (Gaye & Kunz (2009); see also Beaman (2008); Biles & Ibrahim (2005); Bramadat (2007); Seljak (2005).

[29] This legislative framework makes explicit reference to religion or creed as an important part of Canada’s celebrated diversity. It includes the (1982) Constitution Act’s Charter of Rights and Freedoms, the (1988) Multiculturalism Act, and provincial human rights statutes.

[30] Will Kymlicka (2008) speaks about the need to add religion into the multicultural policy mix as a ”third track” alongside ethnicity and race, noting a continuing “uncertainty about the role of religion within the multiculturalism policy, and about the sorts of religious organizations and faith-based claims that should be supported by the policy’” (cited in Kunz, 2009, p. 6). Scholars, seeing the reluctance to speak about religion as a public policy matter in Canada, describe religion as “a form of diversity that dares not speak its name” (Biles & Ibrahim, 2005).



2. Historical trends

2.1 Religion and state relations historically in Canada

Many scholars and commentators note a lack of historical awareness in current-day discussions of ”reasonable accommodation” and ”religion in public space.” This is especially the case when looking at the evolving ways that Canada has negotiated religious diversity and set its current secular approach. Scholars chart at least three main phases in Canada’s historic response to governing religious diversity. These move along a continuum from a single (Catholic and then Anglican) state-supported church with a virtual religious monopoly on public culture and institutions towards a more inclusive current-day secular, multicultural approach.

These eras have been generally described as:

1608-1841: European Catholics and Protestants sought to transplant their forms of Christianity to Canada through a state-supported Christian church, with little religious freedom.

1841-1960 Plural or shadow Christian establishment prevailed. While there was no official state church, there was a Christian culture and state cooperation with a limited number of “respectable” Christian churches (Anglican, Presbyterian, Methodist/United, Baptist and Roman Catholic churches).

1960-present: Society became more secular, with greater “separation of church and state,” and an overtly multicultural approach to religion.[31]

Early efforts to establish an official state church in Lower and Upper Canada were largely frustrated by: (1) the practical challenges of extending parish administrative control over a vast and diverse territory with limited resources; and (2) the need for strategic compromises and political concessions in the face of the stubborn reality of religious pluralism on the ground, which has been a permanent feature of the Canadian social landscape. [32]

The new dominion of Canada that confederated in 1867 joined the mainly English-Protestant Upper Canada (Ontario) with French-Catholic Lower Canada (Quebec). Under the British North America Act1867, the new nation was bound by a uniquely Canadian compromise that remains with us today. This compromise does not establish any single state church, or require the separation of church and state.

Despite this early legal recognition of religious freedom in Ontario,[33] scholars have coined the term ”plural establishment”[34] or ”shadow establishment”[35] to describe the special privileges and government support and recognition extended to a limited number of mainline Anglo-Protestant (Anglican, Presbyterian and United) Churches and the French Roman Catholic Church. Other Christian denominations such as the Lutherans, Baptists and various evangelical groups also later joined the plural establishment’s “circle of respectability,” as “junior partners.”[36]

Many of Ontario’s most cherished contemporary institutions – including educational, healthcare and social service related – were created by Christian organizations in this era of “Christian Canada” (1841 – 1960). Today, many people do not recognize the central and formative role played by Christianity in building Ontario’s social, moral, legal and institutional fabric. A more recent body of work has emerged to highlight the positive contributions of religious actors and associations in Canadian history and society, particularly in building civil society and generating and contributing to “social capital” in Canadian society.[37] This key role continues to the present, and has contributed to Canada having, by some estimates, the second largest voluntary sector in the world (the largest segment of which is religion-based).[38]

2.2 Historical forms of discrimination based on creed

Advocating for the separation of Aboriginal children from their parents in Christian church-run residential schools, John A. Macdonald, Canada’s first Prime Minister, explained to the House of Commons in1883: “When the school is on the reserve, the child lives with his parents who are savages; he is surrounded by savages, and though he may learn to read and write, his habits and training and mode of thought are Indian. He is simply a savage who can read and write.”

– (Truth and Reconciliation Commission of Canada, 2012, p.6)

The history of the mainline Christian churches in Canada, however, also has a darker side that is sometimes forgotten. Scholars describe the emergence of a “Christian common sense” in Ontario between the mid-1800s and the 1960s, where “to be a (proper) Canadian, one had to be a (proper) Christian”.[39] Drawing such equations between race, religion, civilization and belonging led to extreme consequences, such as the assimilation policies and laws the Canadian government enacted to govern Aboriginal Peoples and cultures, particularly following the introduction of the Indian Act in 1876.[40]

Disparaging and legally suppressing Aboriginal spiritual practices and traditions was an integral part of the Canadian colonial project. Government and church authorities often worked hand in hand in this process. Only now, through the work of the Truth and Reconciliation Commission, are Canadians starting to grapple with the ongoing, intergenerational impact of the concerted effort to “Christianize and civilize” the Indigenous peoples of Canada, which culminated in the residential school system administered by Christian churches between 1620 and 1996.[41]

Residential schools in Canada

  • 1831 Mohawk Indian Residential School opens in Brantford, Ontario; it became the longest-operated residential school, closing in 1969
  • 1847: Egerton Ryerson’s study of Indian education recommends religion-based, government-funded industrial schools
  • 1857: Colonial government of Canada (including what is now Ontario and Quebec) passes Act for the Gradual Civilization of the Indian Tribes in the Canadas
  • 1860s: Assimilation of Aboriginal people through education becomes official policy
  • 1876 Canada enacts first Indian Act
  • 1884: Canadian Parliament outlaws the potlatch, the primary social, economic and political expression of some Aboriginal cultures
  • 1892: Federal government and churches enter into partnership to run “Indian schools”
  • 1951: Responding to international criticism, Parliament amends the Indian Act to remove anti-potlatch and anti-land claims provisions
  • 1963: Federal government undertakes an “experimental” project by sending at least six Inuit children to Ottawa to study, to gauge how they would assimilate
  • 1969: Partnership between government and churches ends; government takes over residential school system, begins to transfer control to Indian Bands
  • 1996: Last government-run residential school closes
  • 2008: Government of Canada offers Residential School Apology.

While First Nation spiritual rituals were a primary target of colonizing efforts, racism and religious prejudice in Canada also took shape in persecution and discrimination against Sikhs, Hindus, Buddhists (among other Chinese and Japanese religious practitioners), Muslims, Jews and other non-conforming groups, including disfavoured Christian minorities, atheists and agnostics.

After Aboriginal Peoples, Jews formed the largest non-Christian religious minority group in Canada, historically. Jewish communities have experienced antisemitic[42] prejudice, discrimination and, in some cases, violence since their arrival in the 1700s. Some egregious examples of this history include:

  • The expulsion of Ezekiel Hart (the first elected Jewish official) from the Ontario (Lower Canada) Legislative Assembly, despite his re-election to the Legislature of Lower Canada in 1807, because he could not take the oath of office “on the true faith of a Christian”[43]
  • The extensive web of Jim Crow-like restrictions overtly barring Jewish people from various mainstream social, political, economic and cultural institutions in Ontario society well into the 20th century[44]
  • Acts of hatred and violence against Jews, such as the well-known 1933 Christie Pits riots in Toronto. This conflict involved six hours of violence between Jewish and Christian youths, and was followed by setting Jewish synagogues on fire and other personal attacks against Jews in public spaces.

One of the lowest points in this Canadian history of antisemitism was Canada’s rejection, in some cases with fatal consequences, of Jewish refugees fleeing Nazi Germany, due to widely held beliefs that Jews were racially and religiously inferior.[45] These beliefs led Canada to place Jews in ”non-preferred” immigrant categories. Despite such treatment, the Canadian Jewish community persevered, and went on to rise to the forefront of the fight for human rights and anti-discrimination legislation in Ontario in the post-War era.[46]

Canadian immigration policy also proved to be a key tool in thwarting the entry of other “undesirable” ethno-racial and religious minorities in the 19th and 20th centuries, often through indirect and seemingly benign ways. Among the more famous examples are: the introduction of the Chinese head tax with the Chinese Immigration Act[47] of 1885 following Chinese labourers building of the Pacific Railway; and the passage of the Continuous Journey Act[48] in 1908, which, in effect, barred the immigration of “Hindoos” (as all Indians were called at the time, no matter what their religion). Discrimination and hostility towards these Asian immigrant groups, scholars note, had significant religious elements.[49]

Atheists, agnostics, humanists and the non-religious were also persecuted during the era of ”Christian Canada.” In one famous case, the citizenship applications of an avowed atheist immigrant family (Ernest and Cornelia Bergsma) from the Netherlands were twice denied before being successfully granted in a 1965 Ontario Court of Appeal ruling. The judge presiding over the initial citizenship hearing at the Haldimand County Court in Cayuga, Ontario, on April 3, 1963, deemed the Bergsmas to not be of sufficiently good character, or suited to life in a “Christian country,” based on their professed atheism.[50] He also found them unable to comply with the required oath of allegiance.[51]

Scholars also note that a great deal of dominant group energy was expended battling enemies within the Christian camp – those deemed heterodox, at best, and heretical, at worst. In fact, for most of Canada’s history, the main defining religious differences were between Christian denominations (Catholic and Protestant in particular). Christian minorities outside the plural establishment’s “circle of respectability,” such as Mennonites, Jehovah’s Witnesses, Seventh Day Adventists, Hutterites, Eastern Orthodox and Evangelicals, also faced significant and persistent discrimination and prejudice.[52] This exclusion sometimes intersected with other forms of racism and prejudice against ”less desirable” classes and “races” of European immigrants.[53]

2.3 Evolving policy and legal protections for religion and creed

Most historical accounts of the evolution of religious freedoms in Canada note a fundamental shift in law, policy and social discourse in the post-WWII era (see Appendix 22 which charts historical, legal, policy and demographic shifts over this era).[54] Public policy and law, particularly since the 1960s, has increasingly come to embrace values of diversity, equality and non-discrimination.[55] A new “secular” consensus has also contributed to the progressive privatization of religion and de-privileging (or “dis-establishment”) of Christianity in public and state institutional life.[56] The introduction of the Ontario Human Rights Code (the Code) in 1962 and, some 20 years later, the Canadian Charter of Rights and Freedoms (the Charter), both reflect and have helped to further entrench such “sea changes” in Canadian public values and culture.[57]

An example of the “sea change”

One historian captures this “sea change” in Canadian public culture by comparing the installation of the 19th and 27th Governors-General of Canada:

On September 15, 1959, Georges Vanier was installed as Canada's 19th Governor-General, the Queen's formal representative in her Canadian dominion. Vanier, a much decorated general, diplomat, and active Roman Catholic, began his acceptance speech like this: "Mr. Prime Minister, my first words are a prayer. May Almighty God in his infinite wisdom and mercy bless the sacred mission which has been entrusted to me by Her Majesty the Queen and help me to fulfill it in all humility. In exchange for his strength, I offer him my weakness. May he give peace to this beloved land of ours and, to those who live in it, the grace of mutual understanding, respect and love."

Fifty-six years later, on September 27, 2005, Michaëlle Jean became the 27th Governor-General. Jean, a multilingual, Haitian-born filmmaker and journalist, offered a forward-looking address that stressed, as had Vanier's, the importance of mutual tolerance for Canada's social well-being. Otherwise, however, there were no themes in common, for Jean's primary concern supporting individual liberty; for her, Canadian history "speaks powerfully about the freedom to invent a new world." In this speech there was no mention of the deity. [58]

Benchmarks in the evolution of religious freedom and equality rights in Canadian case law since the 1960s include adopting and applying “reasonable accommodation” approaches to creed and freedom of religion cases under the Code and Charter in the 1970s. This supported the right to not only non-interference or freedom from religious coercion, but also a positive right or entitlement to have one’s religion/creed beliefs and practices accommodated to the point of undue hardship.[59]

Legal scholars note a further evolution of creed rights in recent years. “Adverse-effect” discrimination claims have increasingly challenged systemic forms of discrimination and the way “things have always been done.” For example, (Bhabha, 2012) argues that the new “transformative vision of religious freedom” is about more than seeking exceptions to rules and norms in public space (as accommodation has traditionally been conceived). It is also about engaging to redefine and reconstruct public space itself.[60] Despite such significant advances, various forms of discrimination continue in today’s more secular world. The next section explores some of these.

[31] Periodisation based on Seljak (2012); see also; Beyer (2006); Beyer (2008); Bramadat (2005); and Grant, (1988) for similar periodisations.

[32] The main forms of religious diversity among early settlers in Canada overwhelmingly involved variations of Christianity. The popular hold of Roman Catholicism in Quebec, along with growing Christian religious diversity with the immigration of Lutherans, German Reformed Christians, Presbyterians, Methodists, Baptists, Congregationalists, Mennonites, Eastern Orthodox, and Irish Roman Catholics over the course of the late 18th and 19th century, scholars argue, led the early governors of Canada and Ontario to adopt a more strategic and pragmatic approach, in part an effort to deter and dissuade dissent and rebellion. Statistical data on religion since the late 1800s also reveals that Sikhs, Muslims, Buddhists and Hindus, even if not always counted, have also all been present in Canadian society at least since the first census (Beaman & Byer, 2007; Beyer, 2008; see also Bromberg, 2012). Some argue that this pluralism not only forced the early recognition of religious freedoms, but also played a key role in evolving democratic institutions in Canada more generally (see Seljak et al., 2008).

[33] The Supreme Court of Canada traces the first expression of religious freedom in Canada to the 1760s, more specifically the (1763) Treaty of Paris, which, while bringing New France under the control of the British Crown (and by default, the Anglican Church of England), simultaneously “grant[ed] the liberty of the Catholick [sic] religion to the inhabitants of Canada” (Saumur v. City of Quebec and Attorney General, [1953] 2 S.C.R. 299 at 357, cited in Bhabha, 2012).

[34] For more on the idea of “plural establishment,” see, Novak (2006), O’Toole (2006), and Seljak (2007).

[35] David Martin describes these officially recognized churches as functioning as a “shadow establishment” in the century of “Christian Canada” that followed Confederation. The term denotes the “semblance of detachment that the church maintained from the affairs of the state, when in reality, ’separation’ really was mostly a demarcation of responsibilities” (Bramadat et al., 2008). The mainline Christian churches provided the new nation with its most sacred symbols and narratives, guiding its moral vision and cultural orientation. These churches also:

  • semi-autonomously ran various public institutions in the new dominion, including education, healthcare and social services
  • helped to legislate Christian morality (for example, passing laws protecting the Lord’s Day, imposing restrictions on divorce, marriage, sexual morality, abortion, the sale and consumption of alcohol etc.)
  • greatly influenced public policy and culture, partly from the pulpit (Canada had one of the highest church attendance rates in the world from the mid-1800s until the 1960s) (Seljak et al., 2007; Seljak et al., 2008).

[36]Also see Seljak et al. (2007); Seljak (2012).

[37] Biles and Ibrahim, 2005, p. 162 define social capital as “the community resources – the networks of social relations and the culture they generate – to achieve a common goal”. Scholars further distinguish between bridging capital which “connects individuals across community lines” and bonding capital which “strengthens ties within groups” (Kunz, 2009, p. 12; see also Benson (2012b); Buckingham (2012); Jedwab (2008).

[38] This estimate comes from the Canadian Non-profit and Voluntary Sector in Comparative Perspective, which reports on the sector in 37 countries based on size, scope and donations. Among the registered religious charities (in Canada), more than 40% (32,000) are faith-based, which includes places of worship, clubs and other forms of association. (Citizenship and Immigration Canada 2009; citing Hall et al., 2005).

[39] Seljak, 2012, p. 9. According to this “commonsense,” Peter Beyer, 2008, p. 14 further explains:

There were the white, European, Christian and civilized peoples, some of who were admittedly ‘more equal than others’; then there were the unalterable ‘others’ who had to be kept apart or, to the extent deemed possible, ‘civilized’.

[40] Summarizing the key impact and intent of the Indian Act of 1876, Beyer, 2008, p. 14 notes:

By the end of the 19th century, Canadian governments were pursuing a concerted policy whose aim was to assimilate Aboriginal people completely, to dissolve their separate identities both culturally and religiously. The Indian Act of 1876 was the corner stone and provided the blueprint for this policy. It effectively made Aboriginal people wards of the state, proscribed their religious practices, suppressed their distinct and highly varied forms of social and political organization, and attempted to socialize their children in residential schools run by Christian churches and designed to eliminate all distinct aboriginal cultural features, including language.

[41] See the Truth and Reconciliation Commission’s (TRC) history of residential schools in their 2012 publication, They Came for the Children available on the TRC website at www.trc.ca. In a section exploring the role of the churches, this publication explains:

Nineteenth-century missionaries believed their efforts to convert Aboriginal people to Christinaity were part of a worldwide struggle for the salvation of souls…The two most prominent missionary organizations involved with residential schools in Canada in the nineteenth century were the Roman Catholic Oblates of Mary Immaculate and the Church Missionary Society of the Church of England (the Anglican Church)…Methodist and Presbyterian mission societies, based in both Great Britain and the United States, also carried out work in Canada in the nineteenth century, and became involved in the operation of the residential school system…In his 1889 book The Indians: Their Manner and Customs, Methodist missionary John Maclean wrote that while the Canadian government wanted missionaries to “teach the Indians first to work and then to pray,” the missionaries believed that their role was to “Christianize first and then civilize” (2012, pp.13-14).

[42] The term “antisemitic” is used here, as opposed to the alternate spelling of “anti-Semitic”, for reasons explained in a formative (2002-2003) European Union Monitoring Centre on Racism and Xenophobia (EUMC) Report:

The notation “antisemitism” will be given preference to the notation “anti-Semitism”. This allows for the fact that there has been a change from a racist to a culturalist antisemitism, and in this context

helps to avoid the problem of reifying (and thus affirming) the existence of races in general and a “Semitic race” in particular (p.11).

While the term anti-Semitism, in this view, reproduces the false notion of the existence of a “Semitic” race, and, as such, more strictly connotes racist forms of anti-Jewish thinking and behaviour, the term “antisemitism” can encompass new forms of hostility towards Jews or Judaeophobia that may not depend on notions of Jewish people as a “race” (see Section III 3.2.4 for further exploration of evolving forms of antisemitism historically and in the present).

[43] Bromberg, 2012, p. 61. Bromberg goes on to note how “[i]n 1829, the law requiring the oath ‘on my faith as a Christian’ was changed to allow Jews to not take the oath”. “In 1831,” she moreover notes, “a law which granted full equivalent political rights to Jews was passed, a first for the British Empire” (ibid.).

[44] Employment discrimination against Jews was common well into the 50s and 60s. Many institutions had quotas on the number of Jews they would hire, or forbidding their employment altogether (such as the City of Toronto’s police force). In workplaces, and in both public and private facilities, signs commonly stated, “Gentiles Only,” or “No Jews or Dogs Allowed.” Overt discrimination was also happening in education, the military and in housing. For example, it was common for neighbourhood organizations and land developers to band together to form agreements (“racial restrictive covenants”) to not rent or sell housing to members of unwanted races (including Jews), and/or to place such clauses in property deeds to maintain segregated neighbourhoods. Animosity towards Jews was particularly pronounced during economic downturns, such as the Depression of the 1920s and 30s, during which “foreigners” of various kinds were scapegoated. This included Canadian-born Jews, and often drew on rising international antisemitic propaganda, exemplifying the impact of globalization trends before the current era. See Adelman and Simpson (1996); Davies (1992); and Mock (2008).

[45] Liberal Prime Minister, William Lyon Mackenzie King (Canada’s longest-serving Prime Minister) voiced such beliefs in Jewish inferiority, reflecting acceptable norms at the time. A 1943 Gallup poll, for instance, put Jews in third place, below the Japanese and Germans, as the most undesirable immigrants to Canada (Adelman & Simpson, 1996).

[46] See Bromberg (2012) and Patrias and Frager (2001) for more on the key historical role of Jewish Canadians in passing the Ontario Human Rights Code and other anti-discrimination legislation.

[47] The Act required all Chinese immigrants entering Canada to pay a $50 fee, which became known as a head tax. By 1903, the fee had increased to $500. This served, in effect, as a strong deterrent to further Chinese immigration after Chinese labourers built the Canadian Pacific Railway in the late 19th century. While the 1923 Chinese Immigration Act removed the head tax, this Act also stopped all Chinese immigration with few exceptions (such as business people, clergy, educators and students).

[48] This Act prohibited the immigration of persons who “in the opinion of the Minister of the Interior" did not "come from the country of their birth or citizenship by a continuous journey and or through tickets purchased before leaving their country of their birth or nationality.” This, in effect, barred immigration from South Asia since the long journey by boat necessitated a stopover in Japan or Hawaii to refuel and resupply.

[49] See, for instance, Lai, Paper and Paper (2005). Peter Beyer (2008) describes popular and government reactions to the significant growth and ethnic and religious diversification of Canada’s population between 1881 and 1911 as follows:

The dominant Canadian identities could with some reluctance and suspicion accommodate the presence of Russian Doukhobors and eastern European Jews, but not Japanese Buddhists, Chinese Confucians, or Punjabi Sikhs…From the time of the first Chinese Immigration Act of 1885 to the second of 1923, government policy progressively made it more difficult and then virtually impossible for people from above all India, China, and Japan to enter Canada. The dominant attitude was that such people were just too unalterably foreign even to be assimilated (p. 13).

[50] The information about this case is derived from an article by Kevin Plummer, “Historicist: Citizenship and Character,” published in the online journal, Torontoist, on July 16, 2011. Drawing on archival material from, among other sources, an April 3, 1965 Toronto Star article, Plummer relates reported testimony from the original Citizenship proceeding as follows:

[Judge] Leach asked what church they attended. “None,” Ernest replied. Didn’t the Bergsmas believe in God, the dumbfounded judge asked. Ernest paused to consider his answer and then replied, “No.” “Do you know that this is a Christian country?” Leach replied, according to a court transcript quoted in the press. “You must believe in something. The oath (of allegiance) doesn’t mean anything if you don’t believe in God…The things we believe in, in this country, stand for Christian values and the teachings of Jesus Christ.” He added: “Not everybody follows this, but that is what we try to attain in this country, the Christian way of life. I feel you must have some kind of faith, but you don’t seem to believe in anything from what I can gather… As I understand from your evidence, you have no religion at all.”

In the first appeal ruling at the Supreme Court of Ontario on March 17, 1965, Justice Stanley Nelson Schatz upheld this decision.

[51] The oath of allegiance which was required by law of all new citizens read: “I — swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors, according to the law, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen so help me God” (Cited in Plummer, 2011).

[52] See Bussey (2012) for poignant example of discrimination against Seventh Day Adventist conscientious objectors during WWII. The persecution, and advocacy efforts, of Jehovah’s Witnesses played a particular key role in advancing freedom of religion laws in Canada (see for instance Bhabha, 2012 for an account of precedent-setting case law in this respect).

[53] Seljak, 2012, p. 9 for instance notes that much of the anti-Catholicism in Protestant Canada before the 1960s was connected to prejudice against French Canadians (the great majority of whom were Catholic), as well as “anti-immigrant sentiment aimed at the Irish, Italians, Germans and other newcomers from Eastern and Southern Europe”. Dominant “White” racial identities of the time were far from inclusive of all European ethnic groups. Canada and Its Provinces (1914-17), a popular and respected history text published in Toronto in 1914, presents Galatians as mentally slow; Italians as devoid of shame; Turks, Armenians, and Syrians as undesirable; Greeks, Macedonians and Bulgarians as liars; Chinese as addicted to opium and gambling; and the arrival of Jews and Negroes as ”entirely unsolicited” (Mclaren, 1990).

[54] Scholars vary in how they explain these transformations in Canadian policy, law and sensibilities. Most acknowledge multiple causal factors at work. These include:

  • unintended impacts of state centralization and expansion during WWII, which accelerated secularization processes (differentiation, rationalization of spheres, etc.);
  • growing human rights awareness and community activism, mainly in response to the genocidal atrocities committed by Nazi Germany during WWII, but also as inspired by the US Black civil rights and strengthening labour movement;
  • to a lesser degree, the growth of diversity in Canada following immigration policy reforms in the late 1960s (see Appendix I charting historical legal, policy and demographic shifts over this era).

The steady increase in the number and kind of ethno-cultural and religious categories reported in Canadian censuses over the last century – ethnic categories jumped from 30 to 232 from 1911 – 2001, and religious categories from 32 to 124 – are just one indication of this demographic transformation (Byer, 2008).

[55] There has been a move away from overt policies of assimilation requiring people to abandon cultural and religious differences to gain equal citizenship. The introduction of policies and legislation protecting minority groups’ ’right to be and remain different’, Seljek et al. argue (2008), reflects a significant transformation from a politics of social hierarchy emphasizing and privileging the rights of political, economic and social elites, towards what Charles Taylor calls a ’politics of universalism’: a new consensus based on ideals of equality and non-discrimination.

This new universalism can be seen in the introduction of anti-discrimination legislation in the inter-war years, and its consolidation after that. Examples are:

  • the Ontario Human Rights Code enacted in 1962, after the Bill of Rights first introduced human rights law at the federal level in 1960;
  • the lifting of some of the more draconian restrictions on Aboriginal cultural and religious practices in the 1950s and 1960s (granting Aboriginal people with “Indian status” full Canadian citizenship and the right to vote in 1960);
  • the introduction of non-discriminatory federal immigration policy in the 1960s, and the state policy of multiculturalism in 1971 (later enacted in 1988), in the context of a greatly diversified and expanded (non-English and French) immigrant population;
  • perhaps most significantly, the enshrinement of individual and minority group rights, multiculturalism and religious freedom in the repatriated 1982 Constitution Act’s Charter of Rights and Freedoms.

[56] Signs of this growing separation of church and state, erosion of Christian privilege, and decline of its power to define public morality, post-1960, include:

  • liberalizing laws governing sexual morality, marriage, divorce and abortion, beginning with the Trudeau governments (1968-1979, 1980-1984);
  • displacing church control and assuming state control over healthcare and social services since the 1960s;
  • de-Christianizing Canada’s public schools, especially after the 1982 Canadian Charter of Rights and Freedoms, and increasing public questioning of special government funding of Roman Catholic separate schools in Alberta, Ontario and Saskatchewan;
  • overturning the Lord’s Day Act (1906) in 1985 to allow Sunday shopping;
  • a series of cases since then, that seek to put religions on an equal footing in the workplace (Bramadat et al., 2008; Seljak et al., 2007).

[57] Summing up such transformative developments, Seljak,et al. (2008) observe: “Christianity no longer enjoys the public power and prestige it once had. Christian churches no longer control the powerful social institutions they once operated hand-in-glove with the various levels of government. To a significant extent, religion in Canada has been privatized.”

[58] Seljak, D., Schmidt, A. & Steward, A. (2008). Secularization and the Separation of Church and State in Canada. Multiculturalism Report # 22 (Unpublished)

[59] There were several key Supreme Court of Canada legal decisions in the 1950s that extended protection from discrimination to various disfavoured religious minorities, such as the Jehovah’s Witnesses, long before the Charter enshrined religious freedom and equality (see Bhabha, 2012 for details on some of the cases). Bhaba argues that human rights tribunals largely followed American civil rights jurisprudence when they incorporated “reasonable accommodation” approaches to resolving workplace disputes in the 1970s. (Ibid.). Bhaba states that this approach was first applied to freedom of religion cases under section 2(a) of the Charter in the seminal R. v. Big M Drug Mart Ltd. case in 1985 ([1985] 1 S.C.R. 295).

[60] Bhabha (2012) cites the recent issue of Muslim congregational prayers in a Toronto-area middle-school cafeteria as one recent example of this new “transformative” versus merely “accommodative” vision of religious freedom. The section below on creed accommodation further traces the legal evolution of this more transformative and systemic approach.


3. Current discrimination trends

3.1 Profile of HRTO creed applications (2010-2012)

The OHRC reviewed all applications (formerly known as “complaints”) filed with the Human Rights Tribunal of Ontario (HRTO) citing creed as a ground of discrimination in the 2010-11 fiscal year (April 1, 2010 to March 31, 2011), and 2011-12 fiscal year (April 1, 2011 to March 31, 2012). We started with a list of applications that the HRTO collated from its case management database, and ended up including 179 applications for review in 2010-11, and 140 for review in 2011-12.[61]

Applications citing creed accounted for 6.8% of all HRTO applications filed in the 2011-12 fiscal year, up slightly from 6% in 2010-11 (see the Chart below and Appendix 22.1 for breakdown of HRTO applications filed in the 2011-12 and 2010-11 fiscal years by ground). While this number appears relatively low, it may not reflect the actual extent of discrimination experienced by various communities in Ontario, due to such factors as under-reporting, mis-reporting, and the unknown outcome of applications alleging discrimination.[62] HRTO application statistics reported on here provide a description of the number and nature of applications citing creed as a ground of discrimination filed at the HRTO. It is difficult to gauge how much this may reflect broader trends, in part for the above-mentioned factors.

2011-2012 HRTO applications by ground







Sex, pregnancy and gender identity








Ethnic origin


Place of origin


Family status




Sexual solicitation or advances




Marital status


Sexual orientation






Record of offences


Receipt of public assistance


No grounds


Source: HRTO, retrieved June 21, 2013, from www.hrto.ca/hrto/?q=en/node/152

*The above chart shows the percentage of applications in which each prohibited ground under the Code is raised. Because many applications claim discrimination based on more than one ground, the totals in the chart far exceed the total number of applications received.

3.1.2 Applications by creed affiliation

In both the 2010-11 and 2011-12 fiscal years, Muslims accounted for the highest number of HRTO applications citing creed as a ground of discrimination, closely followed by Christians (of all denominations). According to the 2011 National Household Survey, Muslims made up 4.6% of Ontario’s population in 2011. Relative to their population size, Muslims were highly over-represented among HRTO applicants, accounting for more than one-third (36%) of all HRTO creed applications in 2011-12 and 31.8% in 2010-11 (see Appendix 22.2 and 22.5 for further details). This finding is consistent with research on the growth of Islamophobia and other discriminatory trends affecting Muslim communities, particularly following 9/11, as noted in Section 3.2.5 below. The review of HRTO applications, moreover, revealed that Muslims were not the only target of such trends. Several applications involved claims of discrimination by non-Muslims who alleged they were targeted because they were wrongly perceived to be Muslim. [63] This may show that race is a factor in anti-Muslim discrimination, when victims are discriminated against because of their outward appearance, rather than their actual beliefs (as discussed in Sections 3.2.3 and 3.2.5 below).

Number and percentage of HRTO applications citing creed by creed affiliation (2011-2012 fiscal year)

Pie chart shows the total number and percentage of HRTO applications citing creed by creed affiliation. The overall percentage is greater than 100 because some people identified more than one creed in their application. Muslims made up 50 or 35.7% of applications citing creed. Christians = 49 or 35%. Jewish = 15  or 10.7%. Misc. = 10 or 7.1%. Hindu = 10 or 7.1%. In 8 or 5.7% of applications no creed was identified.  In 7 or 5% of applications more than one creed was identified. Aboriginal spirituality = 4 or 2.9%. Sikh = 3 or 2.1%. Buddhist = 2 or 1.4%. Witchcraft = 2 or 1.4%. Non-religious = 1 or 0.7%.

*Miscellaneous: Elemental magic, Ethical veganism, Kabala, Membership in law society of Canada, Rastafarian, Taoism, Wiccan, Yoga system & cosmology, Zen, Zoroastrianism

While Christians overall are not over-represented among applicant groups relative to their population size,[64] they are involved in a significant number of HRTO cases, lending some credence to the perception that Christians may also feel like “minorities” at times in Ontario’s increasingly secular society (in some cases, despite being a majority). Among creed groups, Christians (of all denominations) [65] accounted for the second highest number of HRTO applications citing creed as a ground of discrimination, in both the 2010-11 and 2011-12 fiscal years. Some 35% of HRTO creed-based applications filed in 2011-12, and 26.8% filed in 2010-11, were from persons identifying with various Christian denominations (see Appendices 22.2, 22.3, 22.5, and 22.6 for further breakdown of applications by creed affiliation). Applicants self-identifying as “Roman Catholic” (9.3%) and simply “Christian” (9.3%) made up the largest number of Christian applicants in the 2011-12 fiscal year, followed by those identifying as Seventh Day Adventist (5.7%) and Christian Orthodox (2.9%) (see Appendix 22.3 for 2011-2012 breakdown of creed applications by Christian denominational affiliation). A similar pattern was evident in HRTO creed-based applications in the 2010-11 fiscal year (see Appendix 22.6).

Relative to their population size,[66] members of the Jewish (15 or 10.7%), Hindu (10 or 7.1%), Traditional Aboriginal (4 or 2.9%) and Sikh (3 or 2.1%) faiths accounted for a disproportionate number of 2011-2012 HRTO creed applications, as did a number of lesser known creed groups (e.g. Rastafarians, Raelians, and others grouped as “miscellaneous” in the graphs reporting on 2010-11 and 2011-12 HRTO creed applications; see Appendices 22.2 and 22.5 for for further details). People identifying as non-religious – whether atheist, agnostic or simply non-religious – accounted for a relatively small number (2 or 1.4%) of HRTO creed applications in 2011-12, but a larger portion (some 5%) in 2010-2011. In both fiscal years, a significant number of applicants did not identify with any particular creed (19 or 10.6% of creed applications in 2010-11 and 8 or 5.7% of creed applications in 2011-12).

The earlier discussed trend of increasing individualism, hybridity, and eclecticism in patterns of contemporary creed belief and practice was in part evident in the significant number of HRTO creed applications – some 5% or 7 in 2011-12 – in which the applicant identified with more than one creed (see Section 1.2 above and Appendix 22.4). There was also an observed tendency among some some applicants, particularly in 2011-12, to elevate what may appear to be more isolated opinions and beliefs to the level of a creed (e.g. belief in “being truthful”, “good business practice”, “fairness”, “respect and dignity for hard work” etc.) (see Appendix 22.5).

Intersecting grounds

Percentage of HRTO applications citing creed by intersecting grounds (2011-2012 fiscal year) 

Bar graph shows receipt of public assistance at 0.7%. Record of offences at 2.1%. Sexual solicitation or advances at 2.1%. Association at 2.9%. Marital status at 3.6%. Sexual orientation at 4.3%. Citizenship at 7.1%. Family status at 7.9%. Gender identity at 10.0%. Age at 11.4%. Sex at 11.4%. Disabiltiy at 22.1%. Reprisal or threat of reprisal at 25.7% and race and related grounds at 50.7%. In 28.6% of cases no intersecting grounds were cited.

A majority of HRTO creed applications - 50.7% in 2011-12, and 60.3% in 2010-11 - also cited a race-related ground in addition to creed (in order of frequency, ethnic origin, place of origin, race, ancestry, colour) (see graph above, and Appendices 22.7-22.10). Only 14% of HRTO creed applications in 2011-2012, and just over one-quarter (or 28.6%) in 2011-2012, only cited creed as a ground of discrimination. Such findings are consistent with research on the significant intersecting impact of ethnic and racial dynamics in discrimination based on creed (see section 3.2.3 for more discussion).

3.1.3 Social areas

Number and percentage of HRTO applications citing creed by social area (2011-2012 fiscal year)

Pie chart shows the social area of employment  cited 102 times or 72.9%. Goods, services and facilities cited 34 times or 24.3%. Housing cited 4 times or 2.9%. Associations cited 3 times or 2.1%. Contracts cited = 2 times or 1.4%.

All human rights applications must cite a Code “social area” as well as a prohibited ground of discrimination. Almost 73% of all 2011-2012 HRTO applications citing creed, and 62% of 2010-2011 HRTO creed applications, identified employment as the social area. The area of services, goods and facilities was cited in 24.3% of 2011-12 creed applications, and housing accounted for almost 3%.

HRTO creed applications compared to all HRTO applications by social area (2011-2012 fiscal year)

Bar graph shows 76.4% of all HRTO applications were employment releated and 72.9% of all creed-related applications were emloyment related. 21.0% of all HRTO applications were related to goods, services or facilities and 24.3% of all creed applications were related to goods, services or facilities. 5.0% of all HRTO applications were related to housing and 2.9% of all creed applications were related to housing. 0.7% of all HRTO applications were related to contracts and 1.4% of creed applications were related to contracts. 0.7% of all HRTO applications were related to Associations and 2.1% of all creed applications were related to associations.

The distribution of creed applications across social areas is broadly consistent with larger trends in HRTO applications. While most creed applications, like all HRTO applications, occur in the social area of employment, when compared to all applications in this period, creed applications are slightly over-represented in the area of services[67] and under-represented in employment (see above graph and Appendix 22.11, 22.12). This discrepancy is even greater in 2010-2011 applications (see Appendix 22.13 and 22.14).

3.1.4 Accommodation

Our review of the 2011-2012 HRTO creed applications revealed that religious accommodation issues, mostly in employment contexts, featured prominently (in just over 42% of creed applications) among the kinds of discrimination issues alleged in applications (see the graph below). Though not systematically tracked in the same way, incidents of harassment and differential/prejudicial treatment based on creed were also fairly commonly alleged in creed applications.

Percentage of HRTO creed applications citing creed accomodation (2011-2012 fiscal year)

Pie chart shows that during the 2011-2012 fiscal year the majority of creed applications (57.9%) did not involve a creed accommodation issue. During the same period, 42.1% of creed applications did involve a creed accommodation issue.

3.1.5 Sex

The 2011-2012 review of HRTO creed applications tracked applications by the sex of applicants (where indicated, based on self-identification) and found that a greater number of these applicants were male (57.1%) compared to female (34.3%). It is difficult to infer the extent to which this may reflect wider trends in creed discrimination. Such differences in the numbers of applications filed by males compared to females could reflect a variety of causes (including, potentially, the greater propensity for men to report alleged incidents of discrimination). The extent to which this pattern in reporting is unique, or similar to wider trends in HRTO applications, cannot currently be determined, since the HRTO does not track demographic information on the sex of applicant groups.

Percentage of HRTO applications citing creed by sex (2011-2012 fiscal year)

Pie chart shows that 34.3% of creed applications were filed by women and 57.1% were filed by men. In 8.6% of cases, the applicant did not indicate their sex.

3.1.6 Geographical distribution

Most applications citing creed were from applicants in the central (47.1%) and Toronto (30.7%) region, perhaps reflecting, at least in part, the greater ethnic and religious diversity in these regions, compared to other regions (see graph below, and Appendix 22.16 ). The top five locations for 2010-11 creed-based HRTO applications were: Toronto (accounting for 45% of all applications); Mississauga (8.3%); Ottawa (4.7%); Brampton (4.1%), and London and Richmond Hill, which each accounted for 2.3% of all 2010-11 HRTO creed applications (see Appendix 22.18).[68]

Geographical distribution of HRTO applications citing creed (2011-2012 fiscal year)

Pie chart shows 66 applications or 47.1% of creed-based applications came from the Central Ontario region. 43 or 30.7% came from Toronto. 14 or 10% came from Eastern Ontario. 13 or 9.3% came from Western Ontario and 4 applications or 2.9% came from Northern Ontario.

Relative to the geographical distribution of all HRTO applications, a disproportionate number of creed applications in both 2010-11 and 2011-12 were from applicants in the Toronto and Central Ontario region (see Appendices 22.17 and 22.18).[69]

[61] The HRTO identified applications where applicants checked the box for creed on the application form. Upon further OHRC review of these applications, we discovered that not all of the applications we recieved from the HRTO actually cited creed as a ground. Those that did not were not reviewed.

[62] Under-reporting of discrimination is a well-known phenomenon in the human rights world, as has also been observed in the reporting of hate crimes. Also, this general under-reporting tendency may be more prominent among newer Canadians. Many newcomers belong to creed minority groups, who are less familiar with, and/or who may feel less empowered or equipped to navigate and use the Ontario human rights legal system. Furthermore, since discrimination based on creed is often intertwined with discrimination based on other sometimes closely inter-related grounds (e.g. ethnic origin, race, colour, place of origin, ancestry), it is possible that cases involving creed are also being reported under other human rights grounds.

[63] The creed of the applicant was determined by how applicants self-identified in applications. In some cases, applicants were discriminated against because of their perceived creed, which in some cases was different than their actual creed. In such cases, the perceived creed was counted, because of our interest in the bases’ of discrimination on the ground of creed.

[64] The total number of persons identifying as Christian (including all denominations) in Canada’s 2011 National Household Survey (NHS) was 8,167,295 or 64.55% of the total population (Statistics Canada 2013). Roman Catholics made up 31.43% of Ontarians in the 2011 NHS, followed by persons affiliated with various Protestant denominations, who comprised 30.77% (or 3,892,965) of Ontario’s population (if we aggregate, in order of their size, “Other Christian”, United Church, Anglican, Presbyterian, Baptist, Pentecostal, and Lutheran denominations as reported in the 2011 NHS).

[65] The category of “Christian” is a composite category that we created to cover all Christian denominations. It does not refer simply to persons self-identifying specifically as “Christian” by affiliation.

[66] According to the 2011 National Household Survey (NHS), the Jewish population accounted for 1.55% of Ontario’s population in 2011. Jews, however, accounted for a disrproportionate 10.7% of HRTO creed applications in 2011-12. While 0.13% (or 15,905) of Ontario’s population were affiliated with “Traditional (Aboriginal) Spirituality” in the 2011 NHS, applications involving Aboriginal Spirituality comprised 2.9% (or 4) of all HRTO applications citing creed as a ground of discrimination in the 2011-12 fiscal year. Hindus and Siks constitute 2.9% and 1.42% of the Ontario population respectively, according to the 2011 NHS, while accounting for 7.1% and 2.1% of HRTO applications citing creed as a ground of discrimination in the 2010-11 fiscal year.

[67] Typically, services applications allege discrimination in public institutions such as health care, education and policing more often than other private services such as hospitality, dining and entertainment. But we do not have any data to confirm this is this case here.

[68] The OHRC’s review of 2010-11 HRTO creed applications classified applications by city in which the incident occurred, as revealed in the “Location of Discrimination” question in 7b of HRTO’s application form. These findings are not comparable with how the HRTO reports its application data, by region, or how we have here reported on the 2011-12 HRTO creed applications, both of which classify region by postal code. This data, however, does give a more precise sense of where allegations of discrimination are occurring.

[69] The HRTO’s data for 2010-2011 suggest that Toronto is over-represented in applications alleging discrimination because of creed. In 2010/11, 27% of all applications filed were from Toronto, as compared to 44.6 % of all creed applications reviewed.


3.2 Underlying trends in research and consultation

3.2.1 Increase of religion-based hate crime

Hate crime statistics offer another source of information about religious discrimination and intolerance. However, this data is limited because, among other reasons, it is estimated that two-thirds of hate crime victims do not report them to authorities. The numbers of people reporting crimes, moreover, varies between communities, and there are differences in how victimization is reported and understood. For example, it can be hard to distinguish whether a hate crime is based on race, ethnicity or religion.[70]

Statistics Canada released two national studies of hate crime, based on 2009 and 2010 hate crime data.[71] In 2009, religion was the second most cited reason for hate crime (29%), compared to 54% for race or ethnicity (the leading factor reported in hate crimes year over year). In 2009, hate crimes based on religion increased more than any other category, rising by 55% nationally from the previous year. In 2010, hate crime motivated by religion and race or ethnicity declined 17% from 2009, while crimes based on race or ethnicity declined 20%.

In 2009, similar to trends in previous years, 70% of all religion-based hate crimes in Canada were committed against the Jewish faith (283, a 71% rise from 2008). The largest increase of hate crimes based on race involved hate crimes against Arabs or West Asians[72], which doubled from 37 incidents in 2008 to 75 in 2009.

The number of Canadian police-reported hate crimes against the Jewish faith accounted for just over half of all religion-based incidents in 2010 (204 in total) – a decline of 38% from the previous year – while increases were reported for hate crimes against the Muslim (+26%) and Catholic (+32%) faiths. Arabs or West Asians (11%) and South Asians (10%) remained the second and third most targeted race or ethnic group after Blacks, who continued to be the primary victims of all hate crimes committed in 2010.

The extent that Islamophobia (defined in section 3.2.5 below) plays a factor in hate crimes against Arabs, West Asians or South Asians is difficult to discern, because of variations in how hate crime victimization may be perceived and reported. Longer-range comparative studies of hate crime data show a general upsurge in crimes motivated by religion post-9/11, particularly against Muslim and Jewish Canadians.[73] The 2003 Ethnic Diversity Survey nevertheless found that only 0.9% of Jews and 0.54% of Muslims reported being a victim of a hate crime based on religion between 1998 and 2003.[74] Other research suggests, however, that people may under-report religion as a factor in hate crimes and discrimination more generally, in part due to difficulties in disentangling religion from race or ethnicity in many cases.[75]

3.2.2 Polarization of public debate

Some researchers have noted an increase of “us” versus “them” contrasts in mainstream media and public discussion about religion post-9/11.[76] Some argue that the mainstream media and public discussion linking new religious diversity with immigration and threats to national security has “fostered resentment against immigration, multiculturalism and accommodation of the needs of religious minorities” more generally.[77] As well, opinion polls suggest that while Canadians may generally support diversity and immigration, many increasingly favour assimilation over accommodation and diversity approaches, particularly when it comes to dealing with religious diversity (see Appendices 24, 25, 26, for more information on opinion polls).[78]

3.2.3 Racializing creed discrimination and prejudice

Scholars have noted that it is hard to disentangle religious-based prejudice and discrimination from that based on racism, xenophobia and ethnocentrism. The close relationship between religion, race and ethnicity for many creed communities, and the visibility of such differences (ethnic, racial and religious) from the mainstream, have exposed many ethno-religious minority Ontarian communities to intersecting forms of discrimination and harassment.[79] After 9/11, this intersectional prejudice and animosity has at times resulted in the broad targeting of visible minority communities associated with Islam (e.g. Arabs and South Asians), regardless of actual religious affiliations.

One of the first hate crimes following 9/11 involved the fire-bombing of a Hindu temple in Hamilton, which the perpretrator apparently mistook for a mosque. There are also numerous other instances involving members of the Sikh faith or non-Muslim individuals of Arab or South or West Asian background, who have been victimized as “Muslims” owing to their outward appearance, language and visibility.

Only a few studies measure levels or types of discrimination faced by religious minorities.[80] Some research suggests that visible minority status is a stronger predictor of disadvantage and discrimination than religion.[81] Other studies, however, suggest that people of certain religious backgrounds (Muslims in particular) are more vulnerable to low income and unemployment across generations, in spite of their generally higher education levels.[82]

Many theorists have explored how differences of religion, culture and ethnicity can be “racialized” in a way that leads to more hardened positions and “justifications” for discriminating against ethnic and religious minorities. This has variously been referred to as the ”new racism” or ”neo-racism” (racism without race), which is different from historically dominant forms of racism based on biology and skin colour.[83] Religion can become “racialized”[84] when religious differences are viewed and treated as fixed and unchanging, and as the only determinant behind individual thought and behaviour. Like traditional forms of racism, the new racism ascribes views and behaviours to religious persons based on their perceived (in this case religious) group affiliation. Internal differences within religious groups are obscured and overlooked in the process. This racialization of religion often occurs because of perceived identifiable signs or markers of religious difference (such as ethnic, racial, religious, linguistic, cultural, etc.).

3.2.4 Antisemitism

Antisemitism is perhaps the prototypical model of racialized religion. The very term antisemitism, coined in the 1870s by people promoting race-based hatred of Jews, reflects a transition from religion (or “anti-Judaism”) to race as a basis for discrimination, hatred and violence against Jews.[85] Definitions of antisemitism range from “acts or attitudes based on ‘the stereotypical construction of ‘the Jew’”[86] to more concrete descriptions that feature specific examples such as are adopted in the recent Ottawa Protocol on Combatting Antisemitism.[87] The European Monitoring Centre on Racism and Xenophobia (EUMC) defines antisemitism (in contradistinction to “anti-Semitism”)[88] in its formative 2002-2003 Report as “anti-Jewish thinking as well as attitudes and acts of prejudice and/or hostility against Jews (as Jews) after 1945” (p.11).The Canadian Race Relations Foundation (2013a) defines antisemitism more broadly as

[l]atent or overt hostility or hatred directed towards, or discrimination against individual Jews or the Jewish people for reasons connected to their religion, ethnicity, and their cultural, historical, intellectual and religious heritage. Manifestations of antisemitism can range from individual acts of physical violence, vandalism and hatred, to organized efforts to destroy entire communities and genocide.

There is still significant debate about the definition and scope of antisemitism, including whether and to what extent historical forms of anti-Judaism,[89] and more contemporary forms of anti-Zionism, should be included. When considering anti-Zionism, concerns have been raised about the rise of a “new anti-Semitism”[90] that is framed more on politics and religion than on race.[91] More recent authoritative accounts and definitions prefer to use the notation of “antisemitism” over “anti-Semitism,” in part in an effort to challenge the very notion of the existence of a “Semitic race,” as well as the reduction of antisemitism to a form of racism.[92]

Antisemitism remains one of the most longstanding and extreme forms of creed-based prejudice and discrimination in Ontario history (as discussed in Section 2.2 above). However defined, Jewish communities in Ontario continue to face the problem of antisemitism, as shown in the earlier discussion of hate-crime data.[93]

The League for Human Rights of B'nai Brith monitors antisemitic hate crime incidents and prepares an annual audit, available on their website. B’nai-Brith’s 2011 Audit of Antisemitic Incidents in the Ontario Region, shows that “the Jewish community is victimized by hate- and bias-motivated crime at a rate that, from 2002-2008, ranged from 15 to 25 times higher than the overall population.”[94] According to their 2012 Audit, there were 726 antisemitic incidents reported to the League in Ontario that year. This was the highest of any Canadian province and an increase of 2.5% over the 708 cases documented in Ontario in 2011 (see the table below for breakdown of incidents by region). Over the past decade, incidents have more than doubled.[95]

A global study by the Roth Institute for the Study of Contemporary Antisemitism and Racism at Tel Aviv University places Canada as third in the world (with 44), in terms of the number of “major violent antisemitic incidents” reported in 2005, next only to France (65) and the United Kingdom (89).[96]

Year 2012

Number of Incidents




% of total incidents for Region


Incidents Harassment Vandalism Violence Harassment Vandalism Violence
Atlantic 27 22 5   81.5% 18.5%  
Quebec 337 279 54 4 82.8% 16.0% 1.2%
Ontario 730 540 182 8 74.0% 24.9% 1.1%
Manitoba 56 39 16 1 69.6% 28.6% 1.8%
Saskatchewan 16 12 4   75.0% 25.0%  
Alberta 75 47 28   62.7% 37.3%  
British 103 73 30   70.9% 29.1%  
North 1 1     100.0%    
Canada 1345 1013 319 13 75.3% 23.7% 1.0%

* Atlantic Region: Newfoundland and Labrador, Prince Edward Island, New Brunswich and Nova Scotia
** North Region: Yukon, North West Territories and Nunavut 

Source: Adapted from B’nai Brith 2012 Audit of Antisemitic Incidents, Retrieved July 24, 2013, from www.bnaibrith.ca/audit2012

3.2.5 Islamophobia

Islamophobia is a term of contested historical origin and more recent public profile that has also been used to draw attention to the ways hostility towards Islam as a religion can sometimes overlap with more racialized and xenophobic forms of hostility towards Muslims “as a people.” While the linguistic origin of the term signifies “fear” of “Islam,” definitions of Islamophobia generally go beyond this to include both anti-Muslim (group of people) and anti-Islam (the religion) sentiments and behaviour. Definitions of Islamophobia include:

  • “stereotypes, bias or acts of hostility towards individual Muslims or followers of Islam in general”[97]
  • “any ideology or pattern of thought and/or behaviour in which [Muslims] are excluded from positions, rights, possibilities in (parts of) society because of their believed or actual Islamic background [and] positioned and treated as (imagined/real) representatives of Islam in general or (imagined/ real) Islamic groups instead of their capacities as individuals”;[98]
  • “the dread, hatred, hostility towards Islam and Muslims perpetrated by a series of closed views that imply and attribute negative and derogatory stereotypes and beliefs to Muslims”.[99]

Chris Allen’s (2010) work provides one of the more rigorous and comprehensive definitions of Islamophobia to date, detailing the diverse ”modes of operation” for sustaining and perpetuating Islamophobia.[100]

The (1997) British Runnymede Trust Report, Islamophobia: A Challenge for Us All, is most widely credited with giving the term prominence and profile in public policy and discussion. Often cited for its definition, this report outlines eight recurring ”closed views” of Islam that characterize Islamophobia:

  1. seeing Islam “as a monolithic bloc, static and unresponsive to change”
  2. seeing Islam “as separate and 'other'” without “values in common with other cultures,” being neither affected by them nor having any influence on them
  3. seeing Islam as “inferior to the West,” more specifically, “as barbaric, irrational, primitive and sexist”
  4. seeing Islam “as violent, aggressive, threatening, supportive of terrorism and engaged in a 'clash of civilisations'”
  5. seeing Islam “as a political ideology...used for political or military advantage”
  6. “reject[ing] out of hand” criticisms made of the West by Islam
  7. using “hostility towards Islam...to justify discriminatory practices towards Muslims and exclusion of Muslims from mainstream society”
  8. seeing anti-Muslim hostility “as natural or normal.”

There is considerable debate on defining Islamophobia. Examples of areas of debate include:

  • whether the term focuses overly on “beliefs” versus more institutional and structural forms of discrimination[101]
  • whether Islamophobia is simply a form of racism and/or something unique and distinct on its own[102]
  • whether it is a distinctly contemporary phenomenon and/or a long-standing feature of Euro-western civilization.[103]

Some people also question the very existence of something called Islamophobia.

Nevertheless, research shows that anti-Muslim prejudice, or Islamophobia, exists and has grown in Ontario since 9/11.[104] Various participants at the OHRC policy dialogue for instance drew attention to the existence of prejudicial (“closed”) views of Muslims and Islam in the Ontario context.[105] Opinion polls and surveys in particular reveal a pattern of distrust, fear and animosity towards Muslims in Canada in the post-9/11 era.[106] The apparent persistence and growth of this trend over time lends some support to the view that Islamophobia is becoming increasingly socially acceptable over time, as has been observed in other jurisdictions.[107]

While Canadians generally envision themselves as more “tolerant” of diversity than other western nations, this same body of research suggests that this is not the reality when it comes to accommodating such things as Muslim headscarves in public life.[108] Antipathy to the Muslim headscarf, which is particularly pronounced in Quebec, still extends well beyond Quebec. The breadth of public support for a ban on niqabs (full-face veil) is particularly pronounced. For instance, one Canada-wide Angus-Reid Poll in 2010 surveyed Canadians’ attitudes towards Quebec’s proposed Bill 94,[109] which would essentially require, among other things, all public sector employees and people using government or public services (such as schools, libraries, health care services, social and childcare services) to show their face at all times. This would in effect ban the niqab (the full-face veil that only reveals the eyes). The survey found support outside Quebec to be highest in Alberta (82 %) and Ontario (77 %).[110] Explanations for public discomfort with the Muslim headscarf vary, from concerns with women’s equality, to more general concerns with security, and conformity with “Canadian ways of life.”

Perceived frequency of discrimination in Canada 2011

Bar graph shows 42% of Muslims perceived the frequency of discrimination to be often. 36% perceived it sometimes, 11% perceived it rarely, 5% never perceived it, and 5% said they didn't know. Of South Asians, 29% perceived the frequency of discrimination to be often. 43% perceived it sometimes, 18% perceived it rarely, 6% never perceived it, and 4% said they didn't know. Of Blacks 27% said they perceived the frequency of discrimination to be often. 41% perceived it sometimes, 22% perceived it rarely, 7% never perceived it, and 4% said they didn't know. Of Jews, 15% said they perceived the frequency of discrimination to be often. 34% perceived it sometimes, 32% perceived it rarely, 12% never perceived it, and 6% said they didn't know. Of Chinese 12% perceived the frequency of discrimination to be often. 40% perceived it sometimes, 34% perceived it rarely, 10% never perceived it and 4% said they didn’t know. Of Aboriginal Peoples 42% perceived frequency of discrimination to be often. 33% perceived it sometimes, 15% perceived it rarely, 6% never perceived it and 4% said they didn't know. Of gays and lesbians 38% perceived frequency of discrimination to be often. 38% perceived it sometimes, 14% perceived it rarely, 5% never perceived it and 4% said they didn't know. Of Anglophones inside Quebec 7% perceived frequency of discrimination to be often. 28% perceived it sometimes, 33% rarely perceived it, 30% never perceived it and 2% said they didn't know. Of Francophone’s outside Quebec 6% perceived frequency of discrimination to be often. 29% perceived it sometimes, 39% perceived it rarely, 19% never perceived it and 7% said they didn't know.
Source: The Environics Institute. Focus Canada 2011, p. 28.[111]

As well, Environics Canada’s (2006) comprehensive Focus Canada survey of Canadian Muslims found that perceived levels of experienced discrimination among Muslims were not noticeably lower in Canada than in other western countries (see Appendix 32).[112] This survey found that Muslim Canadians were most concerned about effects of discrimination (67%) and unemployment (64%) on Muslim life in Canada. Other survey research shows how 9/11 has had a formative effect on anti-Muslim discrimination trends.[113]

Qualitative research shows that while Canadian Muslims generally have a favourable view of how Canadian policy and law protects religious freedoms and supports diversity, there is still a growing sense of alienation (“a feeling of not belonging”) in segments of the community. In part, this is a consequence of ongoing day-to-day encounters with Islamophobia in Canadian workplaces, media, and society.[114] One analyst thus cautions: “If people are constantly reminded that they do not belong, whether on the crude level of the rhetoric of far-right discourse or media or the day-to-day discrimination, subtle or otherwise, that they may face, or when the government fails to listen to their concerns and request for needs, it is only a matter of time before they will feel alienated and lose the desire to belong”.[115]

Some critics have argued that definitions of “new antisemitism” and/or “Islamophobia” are over-reaching, and used in ways that stifle healthy debate by shielding religion and politics (for example, the policy and conduct of the state of Israel or other Islamic state and non-state actors) from legitimate critique. While a human rights approach will not resolve such disputes, to the extent that these go beyond the “discrimination” lens and purview of human rights legislation, there are some points to consider. From a human rights legal perspective, religion-based racism, bigotry and prejudice can become actionable under the Code as “discriminatory” if and where it can be shown that persons have been treated unequally in one of the Code’s five social areas (employment, services and facilities, housing, contracts, vocational associations) solely, primarily, or even partly because of their religious or creed affiliation.

3.2.6 Globalization

One of the distinguishing features of contemporary forms of religious/creed intolerance and discrimination is the global scope and impact of relations shaping it. Current forms of Islamophobia and antisemitism especially show how global issues shape local ones, and vice versa.[116] In some cases, overseas ethnic, religious and political conflicts are played out in Ontario and elsewhere, albeit in locally conditioned ways. Some examples in the news and case law (see OHRC Creed case law review) include local conflicts and confrontations connected to:

  • Israel-Palestine conflict
  • Bosnian-Serbian war
  • Sudanese partition
  • other internal overseas national conflicts, such as between Tamils and the Sri Lankan government, the Chinese government and Falun Gong
  • internal disputes among Sikhs regarding the pursuit of an independent homeland in the Punjab.

The resurgence of religion globally, as documented by international religious observers, along with intensifying globalization, may increase such trends in the future.[117]

3.2.7 Anti-religion

One Canadian social trend, shaped in part by trends in other western liberal democracies, has been a hardening of “secular” positions, and growth of a hostile attitude towards religion more generally in some segments. Some Canadian sociologists believe that this is especially the case among Canadian social and political elites. In the past, scholars observe, faith was assumed, and differences among (mostly Christian) religious believers formed the primary axis of religious/creed conflict. “Today the issue is often faith itself,”[118] with conflicts increasingly flowing along religious versus non-religious lines.

Anti-religious sentiment or “anti-religionism” has drawn strength from a variety of sources that generally share a stereotypical view of religion as inherently or “essentially unenlightened, tribal, anti-egalitarian, and potentially violent.”[119] In some cases, these anti-religious sentiments are reinforced by anti-immigrant prejudice, racism and xenophobia.[120] In other cases, sentiments are based on various secular ideologies that have come to challenge historically dominant Christian mores and institutions.

In yet other cases, these two streams of anti-religionism have overlapped. An example is public backlash initially directed against accommodating a particular religious minority group, that leads to withdrawing or questioning accommodation arrangements for all religious groups.[121] In this context, some have argued that actively practicing Christians (including people from the historically mainline denominations) are increasingly becoming marginalized “minorities” in their own right.[122]

3.2.8 Inter and intra creed disputes and intersections

Religious/creed adherents have been victims – and also perpetrators – of prejudice and discrimination against various minorities, both internal and external. Research and case law shows many ways that intersectional identities and power dynamics can operate internally within creed communities, leading to targeting and marginalizing religious, gender, disabled and sexual minorities. For example, research suggests that female religious adherents often face a double burden: gender-based discrimination from within, and ethnic and religious-based disadvantage and discrimination from without. In some cases, this is in part due to their greater socio-economic vulnerability, and/or visibility, as in the case of hijab-wearing Muslim women Hindu or Sikh women who wear traditional attire.[123] While many recent competing rights scenarios have pitted religious individuals against women or sexual minorities, scholars nevertheless emphasize the importance of not homogenizing, or assuming mutually exclusive, antagonistic relations between such communities and identities.[124]

Confessional and doctrinal disputes among members of the same faith and between members of differing faiths are also not uncommon in the case law.[125] Researchers moreover note growing ethno-racial diversity within historically dominant Christian denominations.[126] In some cases, this “de-Europeanization of Christianity” has contributed to tensions and conflicts around status quo arrangements within and between Christian organizations, to the extent that these continue to privilege historically dominant expressions of Christianity and do not reflect new (non-western) culturally inspired ones.[127]


[70] Statistics Canada defines police-reported hate crimes as “criminal incidents that, upon investigation by police, are determined to have been motivated by hate towards an identifiable group. The incident may target race, colour, national or ethnic origin, religion, sexual orientation, language, sex, age, mental or physical disability, or other factors such as profession or political beliefs” (Statistics Canada, Police-reported hate crimes, June 7, 2011; www.statcan.gc.ca/daily quotidien/110607/dq110607a-eng.htm). Statistics Canada has collected police-reported hate crime data yearly since 2006. It has only collected comprehensive data covering and comparing all of Canada (99% of the population) since 2010.

[71] The 2012 Statistics Canada study (the first of its kind reporting on hate crimes at the provincial level in all provinces and territories in Canada) showed that the highest rate of hate crime was reported in Ontario (particularly in the Census Metropolitan Areas). The 2011 study showed a 43.2% increase in hate crimes (901 in total) reported in Ontario in 2009 compared to 2008, and a 35% increase in hate crimes reported nationally in 2008 compared to 2007. See 2011 hate crime research based on 2009 data by Dauvergne and Brennan (2011) and Dowden and Brenna (2012) for research based on 2010 data.

[72] According to Statistics Canada, “the largest share of the West Asian population, 43% in 2001, were Iranian, while 20% were Armenian, 12% were Afghan, and 12% were Turks” (Lindsay 2001:9). The majority of Canadians of West Asian origin are Muslims (ibid., p.12).

[73]“A pilot study undertaken by Statistics Canada of hate-crime reports in 12 Canadian police departments,” for instance, “indicated a sharp spike in anti-Muslim (and, oddly, antisemitic) incidents in the year after 9/11” (Seljak et al., 2007, p. 26). The study of hate crime reports of 12 Canadian police forces from major centres found 928 hate-crime incidents during 2001 and 2002, and 43% of these crimes were motivated by religion, second only to race or ethnicity (57%) (Seljak et al., 2007).

[74] See Statistics Canada (2003b) and Seljak et al. (2008) for analysis of survey findings.

[75] See Seljak et al. (2007).

[76] See Sharify-Funk (2011), Emon (2010), and Bramadat (2007).

[77] Quoting Seljak et al., 2008, pp. 13-14, who further observe:

Some argue that Canada is essentially a Christian country and newcomers who are not Christians must learn to adapt to this reality. Others argue that Canada is essentially a secular society – with a strict separation of Church and State – and so it cannot accommodate the religious needs of newcomers without compromising its neutrality.

[78] There is some evidence to suggest that Canadians are growing somewhat weary of multicultural values of inclusion and tolerance and increasingly favour assimilation approaches to dealing with ethnic and religious diversity (see Appendices 24, 25). For instance, a 2005 Pew Global Attitudes Survey found that the distribution of opinion in Canada was markedly more assimilation-oriented than most other OECD countries in the sample, and no different from the United States (see Appendix 27: 2005-2008 World Values Survey on perceived Importance of immigrants “adopting the values of my country”).

[79] The Alberta Human Rights Tribunal case of Randhawa v. Tequila Bar and Grill Ltd, 2008 AHRC 3 (CanLII) involved a turban-wearing Sikh man who was denied entry to a bar because, according to the doorman, the bar “had an image to maintain” and did not want “too many brown people in.” This is just one of many disturbing current examples of intersectional discrimination based on race, religion, ethnicity and ancestry. See the OHRC’s Creed case law review for other cases involving intersecting grounds.

[80] Canadian researchers observe that overall, very little scholarly work has been conducted on the types and levels of religious discrimination in Canada (Bramadat, 2007; Seljak, 2012). The data that does exist, disproportionately from opinion surveys, has many methodological limitations, which limit the extent we can draw general conclusions from it. This lack of sophisticated research and data on religious and creed-based demographics, discrimination and intolerance in general leads to serious constraints to informed, evidence-based policy-making. Although the last decade has seen growing interest and attention to religious/creed diversity in policy and research circles, there are still major gaps in basic data.

[81] The 2003 Ethnic Diversity Survey is one of the few studies that looks directly at Canadian experiences and perceptions of religious intolerance and discrimination (Statistics Canada, 2003b). A fairly small proportion of respondents said that they had “experienced discrimination or been treated unfairly” because of their religion. Of the people who reported they experienced discrimination in the last five years, 13% cited religion as a reason (16% for women, 11% for men). Fewer visible minorities (10%) claimed discrimination based on religion, with most citing race and ethnicity as the primary basis (see Appendix N for percentages of visible minority versus non-visible minority Canadians reporting discrimination based on religion). Another recent University of Toronto study by Jeffrey Reitz, Rupa Banerjee, Mai Phan and Jordan Thompson, 2008, p. 15 found visible minority status to be a considerably stronger predictor of economic disadvantage and discrimination than religion. Their study of Statistics Canada’s 2002 Ethnic Diversity Survey found that “[c]onsistent with their membership in visible minority groups, Muslims, Hindus, Sikhs, and Buddhists experience more disadvantage both objectively in terms of household income and subjectively in terms of reported discrimination and vulnerability” compared to other religious groups with fewer numbers of visible minorities. See Appendices 29 and 30 for the visible minority composition of Canadian religious groups, and objective and reported inequality and discrimination by Canadian racial and religious groups. Reitz et al. (2008) nevertheless qualify their findings by noting that the effects of 9/11 and ensuing religious polarization may not be reflected in the early 2002 census data they analyzed. In fact, the authors predict somewhat different results if the study was repeated today, given religious polarization trends.

[82] For example, Peter Beyer’s (2005) study shows that Muslim Canadians have the second highest educational attainment in Canada (after Jews), which is 10% above the Canadian average. Despite this, “Muslims quite clearly earn less for their level of education” (cited in Seljak et al., 2007). This appears to remain the case for well-educated second-generation Muslims (see also Model and Lin, 2002) study of 1991 census data, which reached similar conclusions; cited in Seljak et al. (2007). Model and Lin, 2002, p. 12 conducted a research study focusing on employment occupation and labour participation rates, and more broadly, “indicators of relative economic well-being of Canada’s religious minorities suggests that Muslims are the most handicapped, with Sikhs not far behind” (p.1083). Such findings led Seljak et al. (2007) to conclude that “[s]hould this situation continue into the second and third generations of the post-1960s surge of Muslim immigrants, we might well see in Canada the development of religious conflict that has marked Europe recently”.

[83] Noting the ways religion is often implicated in “neo-racism,” Balibar, 2007, p. 85 explains::

What we see here is that biological or genetic naturalism is not the only means of naturalizing human behaviour and social affinities…[C]ulture can also function like a nature, and it can in particular function as a way of locking individuals and groups a priori into a genealogy, into a determination that is immutable and intangible in origin.

For more on the distinctive qualities of contemporary “neo racism,” see Barker (1981) on “new racism;” Miles (2003) on “racialization;” Modood (1997) on “cultural racism” and Taguieff (2001) on “differentialist racism.”

[84] The very definition and concept of “racialization” anticipates this possibility. British sociologist Robert Miles provides a theoretical elaboration of the concept of racialization in a way that is not exclusively premised on “biological inherentism” and skin colour. For Miles, racialization involves “signifying processes” that”construct differentiated collectives as races” based on “historically shifting markers of racial otherness.” These may draw on, and intermix with, other -isms (nationalism, ethnicism, etc.) (Miles, 1982, p.170). The concept of “racial articulation” was developed by Miles to help think through such interrelations between exclusionary ideologies and “othering” processes.

[85] Scholars have traced the historical evolution from anti-Judaism or “Judenhass (hatred of Jews as evident in the Persian and Seleucid Empires, and the early Christian Church and Roman Empire denunciation of Jews as “Christ-killers”) to the antisemitic racism of the modern era that made the “Final Solution” possible, based on biologically deterministic ideas of race and nation. German intellectual Wilhelm Marr first coined the term “Antisemitismus” in 1879. Historian Martin Bunzl, 2007, p. 12-13 adds:

Both the term and its attendant ideology were the brainchild of German intellectuals who made the exclusion of Jews the cornerstone of a political and cultural movement. Hatred of Jews long preceded this movement, of course. But prior to the modern period, anti-Judaism operated on religious grounds. Persecution was often vicious, but, in theory at least, Jews could overcome their stigma through conversion. What was new about the late nineteenth century's variant of Jew-hatred was its anchoring in the notion of race. A secular concept grounded in modernity's striving toward rational classification, the idea of race gave Jews an immutable biological destiny. All this was connected to the project of nationalism, with the champions of antisemitism seeing themselves, first and foremost, as guardians of the ethnically pure nation-state. Given their racial difference, Jews could never belong to this national community, no matter their strivings for cultural assimilation

[86] This definition is taken from a 2004 report of the European Union Monitoring Centre on Racism
and Xenophobia (EUMC). This was the first comprehensive study of antisemitism in the EU. In 2005, the EUMC (since renamed the European Union Agency for Fundamental Rights [FRA]) adopted the following “working definition” of antisemitism, based on this earlier report:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities (cited on the website of the European Forum on Antisemitism at www.european-forum-on-antisemitism.org/working-definition-of-antisemitism/english/; Retrieved May 10, 2013).

Units of the Organization for Security and Co-operation in Europe (OSCE) concerned with combating antisemitism also use the definition, as does the US State Department’s report, Contemporary Global Antisemitism, released earlier this year.

[87] The Ottawa Protocol (2011) reaffirms the EUMC – now Fundamental Rights Agency (FRA) –
working definition of antisemitism, which says:

Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to:

  • Calling for, aiding, or justifying the killing or harming of Jews in the name of radical ideology or an extremist view of religion.
  • Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective – such as, especially but not exclusively – the myth about a world Jewish conspiracy, or of Jews controlling the media, economy, government or other societal institutions.
  • Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.
  • Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).
  • Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.
  • Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations (see Inter-parliamentary Coalition for Combating Antisemitism, 2010).

[88] See supra note 42 for elaboration of the rationale for using the notation of “antisemitism” as opposed
to “anti-Semitism”.

[89] While some view antisemitism as properly only applying to its dominant race-based modern 19th century variant, others highlight continuities and transformations over a long history extending from ancient times to the present.

[90] Ben-Moshe, 2007, p. 108 for instance argues:

The new antisemitism is not “classic” antisemitism directed at Jews because they are foreign and different, but the spilling over of the Israeli-Arab conflict to Jewish communities throughout the world...[It] is aimed at the collective Jewish state, albeit by employing classical antisemitic characteristics…”.

Though its precise characteristics and features remain contested and are evolving, included in the new antisemitism (some call it “Judeophobia”) are things like “singling Israel out for selective condemnation and opprobrium” (quoting the Ottawa Protocol), targeting the state of Israel as a “Jewish collective,” denying Jews the right to national self-determination afforded to others (for instance, by attacking the legitimacy of the state of Israel, or comparing Israel with apartheid South Africa).

[91] While acknowledging how anti-Zionism can take antisemitic forms, the (2004) Report of the European Union’s Monitoring Centre for Racism and Xenophobia suggests that only if Jews are targeted “as Jews” is it legitimate to speak of “antisemitism.” Anti-Zionist viewpoints, from this perspective, are only antisemitic if "Israel is seen as being a representative of 'the Jew,'" as opposed to "hostility towards Israel as 'Israel,' i.e. as a country that is criticized for its concrete policies"
(2004 European Union Monitoring Centre on Racism and Xenophobia Report, cited in Bunzl, 2007).

[92] See supra note 42 for elaboration of the rationale for using the notation of “antisemitism” as opposed
to “anti-Semitism.”

[93] Partly in recognition of this, in 2009, the Canadian Parliamentary Coalition to Combat Antisemitism was established by all four major federal political parties to investigate and combat antisemitism, including new antisemitism.

[94] See bnaibrith.ca/files/audit2011/AUDIT2011.pdf.

[95] B’nai Brith (2012).

[96] Tel Aviv University (2010). Antisemitism Worldwide 2010 General Analysis. Edited by Roni Stauber. The Stephen Roth Institute for the Study of Contemporary Antisemitism and Racism and The Kantor Center for the Study of Contemporary European Jewry. Study cited in Sutcliffe, 2007.

[97] OHRC, 2005, p. 10. The OHRC’s Policy and guidelines on racism and racial discrimination further describes Islamophobia as “[a] contemporary and emerging form of racism in Canada” that “[i]n addition to individual acts of intolerance and racial profiling…leads to viewing Muslims as a greater security threat on an institutional, systemic and societal level”. The Canadian Race Relations Foundation (2013b) similarly defines Islamophobia as “expressions of fear and negative stereotypes, bias or acts of hostility towards the religion of Islam and individual Muslims.”

[98] Definition taken from Netherlands national submission as part of an unpublished 2002 European
Union Monitoring Centre on Racism and Xenophobia (EUMC) study cited in Allen, 2010, p. 134. Named the RAREN 3 data collection project, the EUMC did this study in late 2001 and early 2002, to establish universally accepted definitions for “racism,” “xenophobia,” “antisemitism” and “Islamophobia.” It involved surveying EU member states for their definitions.

[99] British Runnymede Trust (1997), cited in Jamil, 2012, p. 65.

[100] The European Monitoring Centre on Racism and Xenophobia commissioned Allen and Jorgen S. Nielsen to co-author its Summary report on Islamophobia in the EU after 11 September 2001, 2010, p. 190. Allen continues to lead government sponsored research on Islamophobia in the UK, and internationally. He defines Islamophobia as

An ideology, similar in theory, function and purpose to racism and other similar phenomena, that sustains and perpetuates negatively evaluated meaning about Muslims and Islam in the contemporary setting in similar ways to that which it has historically, although not necessarily as a continuum, subsequently pertaining, influencing and impacting upon social action, interaction, response and so on, shaping and determining understanding, perceptions and attitudes in the social consensus - the shared languages and conceptual maps - that inform and construct thinking about Muslims and Islam as Other. .. As a consequence of this, exclusionary practices - practices that disadvantage, prejudice or discriminate against Muslims and Islam in social, economic and political spheres, including the subjection to violence – are in evidence. For such to be Islamophobia however, an acknowledged 'Muslim' or 'Islamic' element - either explicit or implicit, overtly expressed or covertly hidden, or merely even nuanced through meanings that are 'theological', 'social', 'cultural', 'racial' and so on, that at times never even necessarily name or identify 'Muslims' or 'Islam' - must be present.

Though cumbersome and unwieldy in its definition, Allen arguably advances the analytical purchase
of the concept by moving away from definitions that:

  • hinge on distinguishing between “open” or “closed,” “true” or “false” representations of Islam (which tend to engender a fractious, but largely irrelevant, politics of authenticity, i.e. “real Islam says…”)
  • do not distinguish between effects and causes of Islamophobia and other related phenomenon (either reducing it, or ignoring its relationship to racism, xenophobia, orientalism, etc.)
  • treat Islamophobia in a social and historical vacuum, either over-generalizing or failing to see connections beyond a specific event or issue in time;
  • do not elaborate the precise “ideological” and discursive mechanisms for sustaining and perpetuating it.

[101] Zine, 2004, p. 113. Zine, a professor of sociology at Wilfrid Laurier University, argues: “to capture the complex dimensions through which Islamophobia operates, it is necessary to extend the definition from its limited conception as a ‘fear and hatred of Islam and Muslims’ and acknowledge that these attitudes are intrinsically linked to individual, ideological, and systemic forms of oppression that support the logic and rationale of specific power relations”.

[102] Questions include: to what extent are the tenets of Islam actually a focus of Islamophobes, and to
what extent are Muslims or Arabs or South Asians as a people targeted, no matter what their beliefs? How can a highly multi-ethnic religious community that does not share biological descent be the subject of racism? Meer and Modood, 2010, p. 77 argue that “while it is true that “Muslim” is not a (putative) biological category in the way that “Black” or “south Asian” (aka “Paki”), or Chinese is, neither was “Jew”:
In that instance it took a long non-linear history of racialization to turn an ethno-religious group into a race.” Similarly, “Bosnian Muslims were “ethnically cleansed” because they came to be identified as a “racial” group by people who were phenotypically, linguistically and culturally the same as themselves”. Meer and Modood, 2010, p. 82 go on to observe how “it is frequently stated that while gender, racial and sexuality based identities are ascribed or involuntary categories of birth, being a Muslim is about chosen beliefs, and that Muslims therefore need or ought to have less legal protection than these other kinds of identities. What this ignores, however… is that people do not choose to be or not to be born into a Muslim family. Similarly, no one chooses to be born into a society where to look like a Muslim or to be a Muslim invites suspicion and hostility, and this logically parallels the kinds of racial discrimination directed at other minorities…”.

[103] Most agree that while current-day Islamophobia has distinct features, it draws upon a reservoir of discourses, images and hostile stereotypes from a much longer European historical encounter with Islam.

[104] Both quantitative and qualitative studies to date show increasing levels of anti-Muslim prejudice.

Much of this research is based on opinion polls and surveys. A report by the Toronto Police Service showed a 66% increase in hate crimes in Toronto in 2001, with the largest increase being against Muslims (Zine, 2004). Incidents reported that year included: the stabbing of a Muslim man; the beating and and hospitalization of a 15-year-old boy; attempts by drivers to run down Muslim women as they crossed the street; threats to Mosques and Islamic schools; and in Hamilton, not far from Toronto, the firebombing of a Hindu temple that was mistaken for a mosque (Zine, 2004). Another Ipsos Reid poll found that 60% of people surveyed felt there was increased discrimination against Muslims compared
to 10 years ago (Chung, 2011; cited in Jamil, 2012). For more qualitative research on Islamophobia see Jamil (2012) and Perry and Poynting (2006). Further qualitative research on Islamophobia in Canada was being conducted by Dr. Barbara Perry in 2012, including an unpublished (at the time) year-long study on the rise of incidents of hate-based attacks against Muslims.

[105] Ihsaan Gardee, Executive Director of CAIR-CAN, commented on three recurring myths encountered
in the Canadian context: (1) Muslims are monolithic – they all believe, practice and manifest in the same way; (2) Muslims are trying to undermine democratic institutions and pose a threat to society; (3) there
is a necessary link between hate and Islam (e.g. Islam as hateful towards women, LGBT minorities,
non-Muslims, etc.).

[106] For example, in a 2006-2007 Environics Canada survey, the most comprehensive of its kind, 28% of the general Canadian population sampled believed that “most” or “many” Canadians are hostile towards Muslims (Adams, 2009, p.23). Thirty-eight percent of the 2,000 Canadians surveyed said their impression of Islam was negative. Security concerns were evident in such assessments as most respondents viewed a terrorist attack perpetrated by Canadians with a Muslim background as either very (19%) or somewhat (40%) likely.

A diverse range of later opinion polls and surveys show growing levels of animosity towards Muslims, who were generally perceived to be the least trusted and the most disliked of all religious, ethnic or racial groups among the general Canadian population. For example, in a (2007) Léger Marketing Poll commissioned by Sun Media, only 53% of the 3,000+ Canadian adults surveyed between December 2006 and January 2007 said they held a positive view of the Arab community, lower than that for the Black (70%) or Jewish (76%) communities (Léger Marketing 2007). A (2008) poll of 1,522 Canadians conducted by Léger Marketing on behalf of the Association for Canadian Studies and the Canadian Race Relations Foundation showed similar results (Hill, 2012; see also Jedwab, 2008). An equivalent phone survey would have a margin of error of 2.9 per cent, 19 times out of 20. When asked how much they trusted Protestants, Catholics, Jews, Aboriginal people, immigrants and Muslims, the overall “total trust” scores for the five groups (using a combination of rankings for “trusted a lot” and “trusted somewhat”) were: Protestants 71%, Catholics 70%, Jews 69%, Aboriginals 64%, immigrants 64% and Muslims 48% (with mistrust levels of Muslims being highest for older Canadians). People aged 18-24 gave Muslims
the highest rating for trustworthiness, and people over 65 gave Muslims the lowest rating. A November (2010) Angus Reid Public Opinion online survey asked 1,006 randomly selected Canadian adults if Canada is tolerant or intolerant towards nine different groups (Angus-Reid, 2008). One-third of respondents (33%) thought that Canadian society was intolerant towards Muslims, the highest of all categories (followed by Aboriginal Canadians and immigrants from South Asia). See Appendix 31 for more on findings. When this same poll asked who is most disliked in Canada, Muslims came out on top
at 33%, followed by immigrants from India and Pakistan (24%), Africa (16%) and China (10%).

Another 2011 survey conducted by the Association of Canadian Studies found that 43%, or less than half of the 2,345 people polled, expressed "very positive" or "somewhat positive" perceptions of Muslims (Boswell, 2011; cited in Jamil, 2012).

[107] See Allen (2010) focusing on the UK context in this respect.

[108] The 2006-2007 Environics Focus Canada Survey survey found that 55% of Canadians thought banning Muslim headscarves (of any kind) was a bad idea, compared to 57% of Americans and 62% of Britons (Adams, 2009). Thirty-six percent called the ban a good idea. Environics surveyed 500 Canadian Muslims, as well as 2,000 members of the Canadian general public, to gain comparative insight into attitudes towards and about the integration of Muslims in Canada, inspired by a parallel study conducted by the Pew Global Attitudes project in France, Spain, Germany and Great Britain. The survey of Canadian Muslims took place from November 30, 2006 to January 5, 2007, while the general population survey occurred between December 8 and December 30, 2006 (Adams, 2009).

Interestingly, when asked whether they thought most Muslims wanted to “adopt Canadian customs and way of life” or “be distinct from the larger Canadian society,” a modest majority (55%) of Muslims said they believed most Muslims wanted to adopt Canadian customs. Among the general population, just a quarter of all Canadians (25%) believed that most Muslims are interested in adopting Canadian customs, and a majority (57%) believed that Muslims wish to remain distinct. Seven percent of the general public believed Muslim Canadians are interested in both integrating and remaining distinct (Adams 2009). Canada had the second greatest disparity between the opinions of the Muslim community and the general population of all five countries surveyed (including France, Germany, Britain and Spain). This finding may show that many Canadians associate wearing such outer religious symbols as the hijab with a failure or resistance to adapt to “Canadian customs and norms” (versus merely expressing “reasonable” security and identification concerns as often portrayed). Retaining both cultural distinctness and adapting to Canadian norms was rarely seen as an option – an either/or approach dominated the perceived realm of possibilities.

[109] Though not explicitly stated, Bill 94 takes specific aim at Muslim women who wear the niqab (full-face veil) in public, for avowed concerns around security, communication and identification.

[110] Sharify-Funk (2011). The 2010 Angus Reid poll also found 95% of Quebecers supported the Bill. Overall, men were more likely to support the Bill than women (83% vs. 77%), and people over 55 were more likely than those under 35 (86% vs. 69%). The Bill received wide public support from people like Prime Minister Harper (“the law...makes sense”) and Michael Ignatieff (who spoke of sensible compromise). Mario Conseco, vice president of public affairs for Angus Reid, noted that “it is very rare to have such a high level of public support for a government measure,” further noting that “such breadth of consensus suggests a turning point: a moment at which Canadians are reaching the limits of our vaunted self-image as tolerant and inclusive” (cited in Sharify-Funk, 2011, p.146.

[111] As was found in the 2006 Environics Canada Survey, the 2011 Focus Canada Survey by the Environics Institute found that the Canadian public is most likely to feel that Muslims experience discrimination (often or sometimes). This survey was based on telephone interviews with a representative sample of 1,500 Canadians (aged 18 and over) between November 21 and December 14, 2011. The survey sample, stratified to ensure coverage of all 10 provinces, reflects the population by age cohort, gender and community size. The results from a survey of this size drawn from the population are expected to produce results accurate to within plus or minus 2.5%, in 95 out of 100 samples.

[112] The youngest cohort of Canadian Muslims was the most likely to report an experience of discrimination in the 2006-2007 Environics Canada survey: 42% of people aged 18 to 29 reported such an experience, 11 points above the Muslim average (Adams, 2009). Women were also more likely than men to say they had been discriminated against, a trend in part linked to their greater visibility when wearing headscarves (hijab) or face veils (niqab) identifying them as Muslim (Adams, 2009; see also Jamil, 2011).

[113] A 2002 national survey by the Canadian branch of the Council for American-Islamic Relations (CAIR-CAN) – entitled “Canadian Muslims One Year After 9-11” - showed that Muslims felt they were increasingly the targets of religious discrimination following 9/11. Fifty-six percent of respondents reported experiencing anti-Muslim incidents in the year after 9/11. Verbal abuse accounted for 33% of incidents, racial profiling accounted for 18% and workplace discrimination for 16% (cited in Council for American-Islamic Relations Canada, 2004, p. 6).

[114] Jamil, (2012).

[115] Husaini (1990).

[116] Unlike classical antisemitism and other modern forms of racism that questioned racialised others’ “fitness for inclusion in the national community...in the interest of national purification,” Bunzl, 2007, p. 13 comments on the contemporary European situation: “Islamophobes are not particularly worried whether Muslims can be good Germans, Italians, or Danes. Rather, they question whether Muslims can be good Europeans”, to which we could add, citizens of western secular liberal democracies more broadly.

[117] See for instance Thomas (2009).

[118] Calhoun, 2008, p. 7. The emergence and propagation of a more closed and rigid ”ideological secularism” in Canada and elsewhere, as noted in the 2008 Bouchard-Taylor Commission report among other research, has in part been a response to global religious resurgence, the “War on Terror” and increasing religious diversity and non-western immigrant presences in major western metropolitan centres.

[119] Quoting Bramadat, 2007, p. 121. From this reductive perspective, Bramadat notes, “all acts of altruism, kindness, creativity and human solidarity one sees in religion are treated as illusions oriented toward duping outsiders and insiders” (ibid.; see also Seljak et al., 2007).

[120] Noting an upsurge in anti-immigrant rhetoric positioning religion as a barrier to immigrant integration, Seljak et al. (2007) envisions:

[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.

Using supposedly democratic and egalitarian ideals to socially exclude ethno-racial and religious minorities is a classic example of what Henry and Tator (2009) call “democratic racism”. They describe democratic racism as “the most appropriate model for understanding how and why racism continues in Canada.” They broadly define democratic racism as an ideology that permits and sustains people’s ability in Canada to maintain and reconcile two apparently conflicting sets of values: (1) liberal democratic values and principles such as justice, equality and fairness, and (2) non-egalitarian values that reflect and sanction negative feelings, attitudes and discriminatory behaviours towards minority racial groups.

[121] This trend has been noted in recent high-profile religious minority accommodation cases in public life, in areas like congregational prayers in school, kirpans in schoolyards and courtrooms, equally funding religious schools, or faith-based family mediation (see Seljak et al., 2008). Some incidents and reservations initially involved Muslims and a perceived threat of “Islamicisation,” but eventually led to criticism of religious practice in public more generally. As a result, previously unquestioned accommodation of religious minorities across the religion spectrum are now being challenged. An example of this is the recent controversy following media reports of congregational Muslim prayers in a Toronto-area public middle school. Bromberg (2012) observes how the ensuing public debate resulted in public comments about ending rentals of facilities to Jewish and other faith groups for after-school religious activities. Bromberg, 2012, pp. 62-63 further notes how public misunderstanding about the fundamental purpose and rationale for reasonable accommodation is “creating a climate of animosity and mistrust towards new immigrants, as well as existing cultural/religious communities.” Also, “new demands that seem to threaten established ways or norms are resulting in a pull back against publicly accepted rights that the Jewish community and other groups have enjoyed”.

[122] More than one participant expressed this view at the January 2012 OHRC Policy Dialogue on Creed Human Rights at the University of Toronto’s Multi-faith Centre. A 2013 episode of CBC’s “Cross-Country Check-Up” also prominently featured the view that Christian Canadians were now viewed and treated as second-class citizens in the public sphere and dominant institutions, particularly when compared to those identified as more secular. (Sunday March 3, 2013 edition, “Does religion have a place in public life?”).

[123] In many instances, women’s bodies and comportment have become a major area for playing out social conflicts within and between minority and majority communities, with men (and some women) in both communities vying for control. An example here is the recurring political and media debate over Muslim women wearing head scarves (see, for instance, Banerjee & Coward, 2005; Sharify-Funk, 2011).

[124] See Shipley (2012).

[125] Some case law examples showing religious diversity and conflict within similar communities (either race or religion) include conflicts between:

  • SIkhs of a higher (Jat) caste claiming discriminatory exclusion from a religious organization led by those of a lower (Ravidassi or Chamar) caste; Sahota and Shergill v. Shri Guru Ravidass Sabha Temple, 2008 BCHRT 269 (CanLII)
  • an Aboriginal Catholic employee alleging that the Aboriginal Executive Director was biased towards Aboriginal Catholics due to Canada’s residential school history; MacDonald v. Anishnawbe Health Toronto, 2010 HRTO 329 (CanLII)
  • a Jewish kosher caterer who is not “orthodox or shomer Shabbat” alleging that a Jewish kosher certifying organization treated him differently than if he had been orthodox; Rill v. Kashruth Council of Canada, 2008 HRTO 162 (CanLII)
  • a Muslim travel agent imposing different requirements for getting a hajj visa to travel to Saudi Arabia on the basis that African Muslims overstay their visas; Tulul v. King Travel Can, 2011 HRTO 438 (CanLII).

[126] See Beyer (2008), as discussed in endnote 20.

[127] See Bramadat (2007). Ethnic and racial tensions were recently shown in a demographically transforming Toronto-area church, where the leadership became divided along racial lines, with newer and more numerous visible minority congregation members claiming discrimination by the older, white church establishment.



4. Systemic faithism

Systemic faithism refers to the ways that cultural and societal norms, systems, structures and institutions directly or indirectly, consciously or unwittingly,[128] promote, sustain or entrench differential (dis)advantage for individuals and groups based on their faith (understood broadly to include religious and non-religious belief systems). Systemic faithism can adversely affect both religious and non-religious persons, depending on the context, as discussed in the examples below. Some forms of systemic faithism can be actionable under the Code (e.g. those amounting to “systemic discrimination”),[129] while others may not be (e.g. those taking broader cultural or societal forms). This section looks more closely at two dominant forms of systemic faithism in the current era, flowing from the “residually Christian” structuring of public culture and institutions, and from “closed secular” ideology and practice.

4.1 Residual Christianity and systemic faithism

Scholars studying the contemporary Canadian religious/creed landscape have used the term ”residual Christianity” to highlight various legacies in Canadian public life from the era of “Christian Canada” (1841-1960).[130] To be more specific, the term draws attention, to the ways such legacies continue to directly or indirectly structure contemporary ”secular” Canadian institutions. While scholars using the term are generally critical of the systemic faithism that can result from this,[131] others argue that this is as it should be: that, as a historically Christian nation, Canada should continue to privilege Christianity in public life in keeping with its historical identity and tradition (to which others should “accommodate”).

Among the most obvious examples of residual Christianity in Ontario are the two statutory holidays organized around the Christian high holy days (Christmas and Easter), and public funding in Ontario of Roman Catholic separate schools, but not other religion-based schools.[132] Scholars have highlighted many other examples, both symbolic[133] and institutional.[134] One example in Ontario law is the Ontario Education Act’s provision in section 264(1) – under the subheading “Duties of teachers” – which explicitly states, in subsection (c) on “religion and morals” that it is the duty of the teacher or temporary teacher to:

inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.[135]

Section 19 of the Ontario Human Rights Code preserving separate school rights under the 1867 Constitution Act, and 1990 Education Act, also states, “This Act does not apply to affect the application of the Education Act with respect to the duties of teachers.”[136]

Some legal scholars argue that the very laws that serve to protect religion and creed – including defining what is protected as such – reflect modern, western, liberal understandings of religion, in particular as shaped by historical liberal Protestant Christianity in Canada.[137] Among the defining features of this alleged dominant approach to religion in Canadian law and jurisprudence is a privileging of individual autonomy and private (textual-focused) belief over more public and collective forms of worship, practice and identity. The more individuals’ and communities’ religious/creed beliefs and practices resemble this norm, such scholars argue, the more likely they are to be recognized and accommodated by law and society.[138]

In many contemporary controversies around religion in the public sphere – for instance those involving Muslims, Jews, Sikhs and non-mainstream Christian minorities - such norms have been, or are perceived to be, violated or threatened.[139] Survey and opinion poll research supports the contention that many Canadians are more accommodating of religious beliefs and practices that remain confined to the private sphere, than they are of expressions of identity and faith that take more public, collective and visible forms, against liberal Protestant and secular norms.[140] The same research also reveals a double standard sometimes at play where religion in public is tolerable if it is consistent with Canada’s mainline Christian past, but is unacceptable when laid claim to by religious minorities.[141]

Scholars argue that one consequence of the culturally conditioned way that the law conceives and protects religion and creed is a failure to equitably protect the religious freedom and equality rights of religious minorities whose practices significantly depart from the dominant liberal Protestant norm. For example, scholars have observed how Aboriginal spirituality can often go unprotected under current freedom of religion laws. This happens when the courts fail to recognize and comprehend Aboriginal expressions of spirituality, many of which blur conventional western distinctions between sacred and profane activity, ritual worship and everyday life, and spirituality and ecology.[142] 
Differences between definitions of religion in law, and how “religion” is traditionally conceived (if at all) and practiced in various religious minority communities (including, among others, Muslim, Jewish, Hindu,[143] Buddhist,[144] Sikh, and Chinese[145] Canadian communities) have also been shown to contribute to the unequal access to, and recognition of religious minorities’ religion/creed equality rights and freedoms.[146]

Also, Christians who practice their faith in more public and collective ways may find themselves disadvantaged by this dominant understanding of religion in law and society. However, there are also many case law examples of diverse belief systems and practices protected under the Code ground of creed, even where practitioners do not consider themselves to be practicing religion per se.[147]

Members of non-religious movements and creeds can also find themselves structurally disadvantaged and inequitably treated under law and policy, which tends to privilege recognized ”religions” and religious practices. Some examples of how contemporary law can advantage religious groups and organizations over non-religious ones include granting:

  • Tax exemption on lands used by religious communities for religious purposes, and for the residence costs for ministers, priests or other religious leaders
  • Charitable organization status for religious organizations making contributions to churches, mosques, synagogues and temples, as well as a host of tax deductibles for religious organizations.[148]

These same privileges and protections are denied to organizations and communities coalescing around non-religious creeds.[149]

Newer religious movements (NRMs)[150] and “para-religious groups”– both of which are on the rise[151] – have also been vulnerable to stigmatization, social exclusion, prejudice and discrimination, in some cases because of stereotypes and assumptions from the Christian past.[152] Such stigma was evident in the public outcry and media coverage of a recent proposal to fund a Wiccan chaplain in a federal prison, which led the federal government to review and then retract funding for all part-time prison chaplains. Many of these creed communities have a highly non-central and individualistic character, and include beliefs and practices that do not always fit neatly within the terms and definitions of established legal protections for religion, creed or conscience (see Section III for more on this challenge).

Communities organized around lesser known creeds can also face significant public scepticism and enhanced scrutiny when advancing creed-based human rights claims.[153] This can be due to minimizing their seemingly “strange” beliefs, or to antipathy to their non-theistic orientation (“atheists can't have principles") in what remains a predominantly (arguably post) theistic Christian public culture.[154]

4.2 Closed secularism and systemic faithism

Secularization and the privatizing of religion has been the dominant historical response in Canada (post WWII) to conflicts between and within various faith traditions. While an advance over the era of overt religious privilege and discrimination against persons of minority faith/creed traditions, the ongoing process of secularization in Canada has not been without its own exclusions. This section looks more closely at some of the inadvertent forms of discrimination and exclusion that religious communities can encounter when narrow (“rigid” or “closed”) models of secularism prevail that seek to bar religious voices, practices and perspectives in public life, based on alleged principles of “neutrality,” in ways that can inadvertently advantage non-religious persons. The section also adds clarity to the meaning and interpretation of the secular, in Canada, and its implications for accommodating religion in the public sphere.

4.2.1 History, definition and goals of the secular

Many scholars and commentators have noted the cloud of confusion often surrounding uses and understandings of the ”secular” in contemporary public discourse and debate about religion in public space.[155] Early uses of the term secular, dating back to the 14th century, simply meant attention to things of this world as distinct from eternal matters.[156] The positivist movement later adopted the term and developed it as a full-fledged ideology.[157] This movement sought to free politics and society of all religious conceptions in favour of a new morality exclusively concerned with human well-being in the present life based on science and rationality. While aspects of this broader ideology have tacitly shaped modern political uses of the term,[158] contemporary scholars nevertheless distinguish between ”secularism” as an ideology, and “secular” (or secularity) as “the modus operandi of a society that does not look to any particular religious tradition for the validation of its political authority”.[159]

Scholars argue that much public debate about the demands of the secular suffers from a failure to distinguish between the underlying goals (or ends) of secularity, and the particular historical institutional arrangements (or means) for achieving them.[160] More often than not, the meaning of the “secular” is simply asserted and assumed rather than explained and explored,[161] in ways that can detract from analyses and appreciation of the plurality of values and options really at stake.

To avoid this conflation of aims and means, Canadian political philosopher Charles Taylor (2010) argues that it is helpful and prudent to begin discussions about appropriate responses to (religious) diversity with a clear understanding and engagement with the fundamental goals (or ”goods”) of the secular. These core goals include:

  1. Liberty – maintaining non-compulsion in matters of religion and belief (the ”free exercise” of religion and conscience, including the freedom not to believe)
  2. Equality – the equal treatment of people of different faiths or beliefs (with no one moral outlook, religious or a-religious, enjoying a privileged status in public life).[162]

These goals can and do conflict with one another. Scholars point out that understanding secularity as a “multi-value doctrine,” with at times conflicting constitutive values, is to acknowledge the need to continually and contextually reconcile and balance these competing goals, on a case-by-case basis, without recourse to a general (argument-stopping) abstract rule or principle.[163] How societies choose to balance and weigh each of these goals will shape the particular character and form of their secular arrangements.[164]

4.2.2 Secular models: open versus closed

Existing secular institutional arrangements generally range along a continuum from anti-religious models, which seek to completely remove religion from the public sphere, to liberal and pluralistic models, which are more inclusive of religion in public life.[165] Though all models generally uphold some commitment to “principled distance” of the state vis-à-vis any one moral orientation or belief system, these can nevertheless be usefully contrasted and categorized into two main types: open and closed secular models (see Appendix 31 for contrast of open versus closed models of secularism).[166]

Open models of the secular generally emerged historically in contexts of, and response to, religious pluralism (as in Canada, India, USA). These models tend to be based on liberal pluralist political theories that affirm diversity in general, and thus welcome religion in public space, subject to limitations of non-compulsion and equality of treatment.[167] In contrast, closed secular models generally emerged in societies dominated by a single powerful church/established religion. The closed model – sometimes referred to in shorthand as ”laïcité”[168] – tends to be inspired by republican[169] (“melting pot”) political theories that seek to eliminate religion in the public sphere, and bind members of political society through shared allegiance to civic (European Enlightenment) ideals and values. Appendix 31 talks further about distinctions between these two main contending secular models.

4.2.3 The Canadian model

Despite popular perceptions to the contrary, the Canadian Constitution itself does not explicitly affirm secularism as an autonomous legal principle, nor require separation of church and state, or state religious neutrality.[170] Statutes explicitly mentioning ”secular” are few and far between.[171] However, most would agree that the general contemporary social, political and legal consensus in Canada is “secular without being secularist”.[172] This affirms the need for the state and public institutions to retain a sufficient degree of “principled distance” from any particular religion or belief, to not privilege or impose any one over any other. Yet, at the same time, this consensus does not impose a “new secular morality” or require people of faith to check their faith at the door.[173] Legal and political analysts generally agree that the Canadian approach to governing religious diversity – although regionally and administratively diverse[174] – is mostly the open secular model described earlier. This is widely seen to be affirmed in religious freedom and equality case law,[175] and as being most consistent with Canada’s legal and policy commitments to diversity and multiculturalism.[176]

While secular is not a term in use in the Ontario Human Rights Code or any OHRC policies, it has been cited in a few Charter rulings in the higher courts. The few Canadian Law Dictionaries containing entries for ”secular” all singularly refer to a 2002 Supreme Court of Canada decision, Chamberlain v. Surrey School District,[177] arising out of the British Columbia School Act, as defining of Canadian legal understandings of the secular (see Appendix 32 for full definitions). The Supreme Court of Canada and British Columbia Court of Appeal decisions both affirmed an inclusive Canadian legal understanding of secular as open to religious expressions in the public sphere.[178] For example, the Canadian Law dictionary reflects this stance:

  • The meaning of strictly secular is thus pluralist or inclusive in its widest sense.[179]
  • Religion is an integral aspect of people's lives and cannot be left at the boardroom door (see Appendix 32 for full definitions).[180]

Since the Chamberlain decision in 2002, the courts have largely upheld this view. They have recognized, in accord with the first precedent-setting freedom of religion case under the Charter - R. v. Big M Drug Mart[181] - individuals’ right to believe as they choose, and also their “right to declare religion openly and without fear of hindrance or reprisal, and…to manifest belief by worship and practice or by teaching and dissemination”, whether in private or in public.[182] This approach was recently reconfirmed in a much publicized (Dec. 20, 2012) Supreme Court of Canada decision, R. v. N.S.[183], involving the right of a Muslim women to wear the niqab (full face veil) while testifying in a criminal proceeding. Writing on behalf of the majority, Chief Justice McLachlin wrote:

A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.[184]

In another important (2013) decision, R.C. v. District School Board of Niagara,[185]  the HRTO affirmed a legitimate place for the expression of diverse religious ideas and practices within public schools and institutions, provided particular requirements are met.[186]

4.2.4 Tensions and points of debate about religion in the public sphere

Legal scholars thus generally agree on the “open secular” texture of Canadian policies, law and jurisprudence. However, some debate remains about appropriate limitations on freedom of religion in the public sphere.

Limitations on freedom of religion in the public sphere

It is a basic freedom of religion principle that “the freedom to hold beliefs is broader than the freedom to act on them.”[187] Limitations on acting on religious beliefs derive in part from recognizing their more direct potential impact (compared to beliefs) on the rights of others.

However, views vary on where to draw the line on limiting religious practices in the public sphere. Positions tend to range along a continuum from tolerating no religion in public space (closed secularism) to advocating no limits on expressing and manifesting religion in public space. Neither of these positions are legally tenable in the Canadian legal context, which recognizes that a right to express and practice religion in public exists, albeit subject to limitations and balancing with other competing rights.

People advocating greater limitations on religion in public tend to favor the need to reach consensus on and defer to core common civic values, for instance as enshrined in the Charter of Rights and Freedoms (e.g. freedom, dignity, autonomy, security, equality, diversity, democracy).[188] In this perspective, religious practices in the public sphere, may be limited where they significantly grate against these core values.[189] In this view, religious believers crossing over the private to public sphere threshold must play not only by their own religious rules, but also by the liberal rules and norms of the Canadian public sphere (at least while there). This leads us to ask, what precisely are those fundamental “Canadian values” that shape and underlie our rights and freedoms? And to what extent are these values non-negotiable?

“Secularists must accept that religion is not left at the public door, but religious actors must also accept that they are no longer only playing by religious rules when they pass through the public door.”
– OHRC Legal Workshop participant

“Is there a way to think about what the obligations are entering into the public sphere? One view is that it is just to articulate your own beliefs, defend and advocate for them. Another is that there is an obligation when you enter the public sphere to recognize that there is widespread disagreement, and that you don’t just have an obligation to articulate your own, but also to stand in the shoes of others.”
– OHRC Legal Workshop participant

For instance, some people have argued that gender equality is or should be a non-negotiable “Canadian value” that should automatically trump religious freedoms in the public sphere.[190] Charter jurisprudence, however, generally suggests that no right is absolute, and that there is no hierarchy of rights.[191] The secular ideal of state neutrality is also sometimes used to defend a maximal view of limitations on religion in public life (as is discussed further below).

People favouring fewer limitations on religion in the public sphere generally acknowledge the need for at least a minimal degree of consensus around shared civic values. However, they tend to either privilege the values of diversity and freedom of religion, conscience, expression and association as core Canadian values,[192] and/or argue for a much thinner language of civic values, stripped down to a procedural minimum.[193] While some argue that expressing religion in public space should be limited only by criminal law tests, others hold that the state should refrain as much as possible from imposing any substantive moral vision of what is good on the citizenry.[194] Still others question the ground rules and values of Canadian society itself, from a religious perspective.[195]

The Ontario Human Rights Code affirms the right to equal treatment for religious/creed adherents, which includes a duty to accommodate their religious or creed practices in both private and public spheres of activity governed by the Code. This is consistent with the Code’s overarching aim to create an inclusive Ontario society where the dignity and worth of all Ontarians is respected (including people with diverse religious views). The distinction between the public and private sphere is largely irrelevant to Code considerations of whether a duty to accommodate religion or creed exists.[196] This duty is only limited by considerations such as undue hardship, bona fide requirements, and the need to balance creed-based rights with the legally enshrined rights of others, when they conflict with one another.[197] Notably absent in this is any consideration of whether the right or duty plays out in public or private. In fact, to not accommodate religious observances in protected social areas (services and facilities, employment, housing, contracts and vocational associations), in public or private, can contravene the Code.

Neutrality and its limits

It is common for proponents of more closed secularism models to advocate for complete banning of religious expressions in public life to maintain “neutrality” in public affairs. For example, this perspective is evident in arguments that because something is public or publically funded, it must exclude religion or religious sensibilities to remain neutral or secular.[198] However, critics argue that the idea that taking religion out of the public sphere renders it neutral or secular fails to acknowledge how this can inadvertently privilege agnostic and atheist perspectives in the public square and thus put religious believers at a distinct disadvantage “compared to other bearers of comprehensive viewpoints.”[199] “[W]e are all believers,” Benson argues in this respect, “it is not a question of whether we believe, but what we believe in.”[200]

“[The] public sphere is [sometimes] spoken of as ‘neutral’ because it has been stripped of its narrow religious adhesions. What is not recognized (or debated) however, is that what is left when express religions are excluded from public complex spaces are the implied and inchoate beliefs of other belief systems that, not being animated by religion, seem to get a ‘pass’ and a special right of involvement (and funding) within the ‘public’ systems.”[201]
– Iain Benson

In the landmark Supreme Court decision in Chamberlain, Mr. Justice Gonthier and Justice Bastarache in their dissenting judgement, similarly take issue with the equation sometimes drawn between “secular”, “non-religious”, and “neutral”, as found expression in an earlier ruling by Saunders, J.[202] Describing the problems with this reasoning, in this overturned decision, Gonthier, J. states:

In my view, Saunders J. below erred in her assumption that “secular” effectively meant “non-religious.” This is incorrect since nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. I note that the preamble to the Charter itself establishes that “…Canada is founded upon principles that recognize the supremacy of God and the rule of law.” According to the reasoning espoused by Saunders, J., if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has “belief” or “faith” in something, be it atheistic, agnostic or religious. To construe the “secular” as the realm of the “unbelief” is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.[203]

Highlighting how ‘neutral constructs’ (in this case the secular) can often have unequal consequences for equity-seeking communities, as recognized in human rights jurisprudence, Bhabha analogizes to the disability context, where it is widely recognized today that the constructed world is not neutral but privileges the able-bodied.[204]

Though not explicitly stated in the Constitution, the Supreme Court of Canada has nevertheless inferred and affirmed, on many occasions, a duty of religious neutrality of the state as a consequence of sections 2(a) and 15 of the Charter, protecting freedom of religion and religious equality. However, Canadian legal scholars point out that in the Canadian legal context, where neither neutrality nor secularism operate as autonomous constitutional principles, the duty of neutrality is sourced, in the first instance, in the principle of religious equality and freedom of religion.[205] This has important implications as it suggests that the duty of state neutrality is relative. It is not an end in itself, but rather a means to the end of advancing religious equality and freedom of religion. This is supported in several high court legal decisions.[206]

Expressing and accommodating religion in the public sphere, from this perspective, need only be constrained by such considerations as:

  • The need to maintain liberty (i.e. non-compulsion in matters of religion and belief)
  • The need to maintain equality and non-discrimination – to not privilege or endorse any one faith (religious or non-religious) over any other
  • The impact on the competing rights of others and the need to protect public safety, order, health and core constitutional values.

From this human rights-based perspective, religion is a fully legitimate part of public life and it is also a necessary part of a fully inclusive public sphere.[207]

Legal analysts also point to the (2012) S.L. v Commission scolaire des Chênes[208] Supreme Court decision as evidence of the evolution of a more nuanced approach to the ideal of neutrality. The majority of the Court in S.L. conceded that, “from a philosophical standpoint, absolute neutrality does not exist”.[209] This decision also acknowledges “the difficulty of implementing a legislative policy that will be seen by everyone as neutral and respectful of their freedom of religion”,[210] citing Richard Moon in this respect:

If secularism or agnosticism constitutes a position, worldview, or cultural identity equivalent to religious adherence, then its proponents may feel excluded or marginalized when the state supports even the most ecumenical religious practices. But by the same token, the complete removal of religion from the public sphere may be experienced by religious adherents as the exclusion of their worldview and the affirmation of a non-religious or secular perspective . . . .
...Ironically, then, as the exclusion of religion from public life, in the name of religious freedom and equality, has become more complete, the secular has begun to appear less neutral and more partisan. With the growth of agnosticism and atheism, religious neutrality in the public sphere may have become impossible. What for some is the neutral ground on which freedom of religion and conscience depends is for others a partisan anti-spiritual perspective.[211]

While the court ultimately maintained that the state should still strive to be as neutral as possible, such neutrality was explicitly inclusively conceived,[212] in terms of religion, as “show[ing] respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the affected individuals.” Nevertheless, there are countervailing court decisions that, some have argued, appear to equate secularism (qua absence of religion) with “neutrality,” “non-discrimination,” “tolerance” and “non-sectarianism.”[213]

4.3. Consequences of systemic faithism

Some scholars argue that among the main adverse consequences of the idea that contemporary Canadian secularism has solved the problems of religious discrimination and inequality by providing for a neutral and even playing field is that it prevents Ontarians from seeing (1) the persistence of Christian privilege in Ontarian public culture and institutional life, and, (2) the adverse effects of closed secularism and “neutral secular” constructs.[214] The inability to see the structural religious advantages and disadvantages[215] – or “systemic faithism” – that this sustains and engenders may in part explain the frequency with which religious accommodations are popularly denounced as providing “special privileges” to minority creed practitioners (instead of protecting their equality of opportunity to live according to their religious conscience by accounting for this uneven playing field).

Due to the close connections between religion, ethnicity and race in the Ontario context – where many religious minorities also belong to ethnic and racial minority groups – this structural religious disadvantaging may increasingly take on racial dimensions.[216] Some scholars also argue that not acknowledging or addressing systemic faithism could lead to increasing community polarization, alienation and radicalization[217] within minority creed communities, with all that this entails for the mainstream, as observed in other jurisdictions.[218] It may well be that this point in time is one of those moments, recurrent in Canadian history, calling for an expansion of the “inclusive circle” as John Ralston Saul terms it, drawing on Aboriginal Canadian cultural foundations – “an inclusive circle that expands and gradually adapts as new people join us.”[219]


[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 14th 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 19th 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 19th 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 4th 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 Niagarasupra 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 19th 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.”

[201] See for instance Benson (2012). Both Andre Schutten (2012) and Iain Benson (2012) 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.

[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.Lsupra 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).