5. Legal framework

5.1 Ontario Human Rights Code

Under Part 1 of the Code, people are protected from discrimination and harassment based on creed in five “social areas”:

  • In goods, services and facilities (section 1). “Services” is a broad category and can include privately or publicly owned or operated services such as schools, restaurants, policing, health care, shopping malls, insurance, etc. Harassment based on creed is a form of discrimination, and is therefore also prohibited in services (see section 8.2 below for more on harassment).[92]
  • In housing (section 2). This includes access to and treatment in private rental housing, co-operative housing, social housing and supportive or assisted housing.
  • In contracting with others. This includes entering into or ending a contract, setting prices or contract terms and discrimination during the life of a contract (section 3).
  • In employment (section 5). Employment includes full time work, part-time work, volunteer work, student internships, special employment programs, probationary employment,[93] and temporary or contract work.
  • When joining or belonging to a union, professional association or other vocational association. This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, treatment of members, etc.(section 6).

A fundamental aspect of the Code is that it has primacy over all other provincial laws in Ontario, unless the law specifically says that it operates notwithstanding the Code. This means where a law conflicts with the Code, the Code will prevail, unless the other law says otherwise.[94]

Under the Code, the right to equal treatment on the ground of creed includes the right to be treated equally, whatever one's creed, with no person being privileged or disadvantaged or prevented from taking part in a Code social area based on their creed (or lack of creed). The right to equal treatment can sometimes require individuals and organizations to take positive steps to accommodate people’s creed observances.

The ground of creed, like religion, has some distinct characteristics. First, creed typically has a strong associational dimension; that is, it may require or be expressed through group-based activities and institutions.[95] Second, a creed may take many and varied forms, owing to its subjective basis and rooting in “sincerely held belief.” Many people think that because a person’s religious or creed beliefs can change, they should give way to other so-called more important needs or rights. Although people may think it is very easy for people to change their creed beliefs, the Supreme Court has said that religion is “changeable only at unacceptable cost to personal identity” and is no less deserving of protection than any other right. [96]

“[R]eligious belief or commitment [i]s deeply rooted…as an element of the individual’s identity, rather than simply a choice or judgment she or he has made.” – Richard Moon, as cited by the Supreme Court of Canada[97]

While the Supreme Court was speaking about religion, the same may be said of creed.

Finally, depending on the circumstances, the right to equal treatment based on creed may be informed not only by the Section 15 equality provisions of the Charter (like other Code grounds) but also by a "fundamental freedom" under the Constitution (freedom of conscience and religion under s. 2(a) of the Charter).

Despite some of the unique aspects of religious and creed rights, the Supreme Court of Canada has confirmed that there is no hierarchy of rights, and creed deserves the same consideration, protection and respect as other human rights (see the OHRC’s Policy on competing human rights).[98]

Section 9 of the Code prohibits both direct and indirect discrimination. Section 11 states that discrimination includes constructive or adverse effect discrimination, where a requirement, policy, standard, qualification, rule or factor appears neutral but excludes or disadvantages a group protected under the Code.[99]

People who have a creed, or are discriminated against because of their creed or lack thereof, are also covered by the Code under section 8 if they experience reprisal or are threatened with reprisal for trying to exercise their human rights.[100]

People are also protected from discrimination based on their association with someone with a creed, or lack thereof (section 12). This could apply to friends, family[101] or others – for example, someone advocating on behalf of a person with a religious or creed background.

The Code includes specific defences and exceptions that allow behaviour that would otherwise be discriminatory. These include but are not limited to defences for special programs (s. 14), special interest organizations (s. 18), solemnization of marriage by religious officials (s. 18.1), separate school rights (s. 19), restriction of facilities by sex (s. 20), and special employment (s. 24). For more on these defences, see section 8.

An organization that wishes to rely on these defences and exceptions must show it meets all of the requirements of the relevant section.

5.2 Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms guarantees people’s civil, political and equality rights in the policies, programs, practices and legislation of all levels of government.[102] Unlike the Code, which applies to both the public sector and private entities, the Charter applies only to government and also includes government policies, programs and laws. Governments must not infringe Charter rights unless violations can be justified under section 1, which considers whether the Charter violation is justifiable in the circumstances.

In certain circumstances, the Charter may assist in interpreting the scope of human rights protections based on creed.

Section 15 of the Charter guarantees the right to equal protection under the law and equal benefit of the law, without discrimination based on religion, among other grounds. This equality rights guarantee is similar to the purpose of the Code.[103]

Section 2(a) of the Charter protects “freedom of conscience and religion” as a fundamental freedom in Canada. The Supreme Court of Canada defined “freedom of religion” under the Charter in R. v. Big M Drug Mart:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that…no one is to be forced to act in a way contrary to his beliefs or his conscience. [104]

The Supreme Court of Canada has affirmed the essential purpose of freedom of religion and its fundamental importance in a free democratic society in many decisions.[105]

Section 2(a) of the Charter also protects freedom of conscience, which shares similar underlying purposes.[106]

The Code and Charter share common objectives, and they are often interpreted in light of one another. However, there are some important differences between the purposes of these statutes, and ongoing debate about how they should relate to each other.[107] For example, the protection of freedom of religion under s. 2(a) of the Charter is primarily concerned with preserving individual liberty. The Code is primarily concerned with preserving and promoting equality and non-discrimination between individuals, as members of Code defined groups.[108] Analysis under the Code must go beyond asking if persons are ultimately free to practice their faith – it must also ask if they may equally access, benefit from, and are equally treated in, employment, housing, contracts and services. For this reason, it would be inappropriate or incomplete to reduce equality rights based on creed under the Code to liberty rights under the Charter.

5.3 International human rights law

International human rights laws and instruments set standards and obligations for domestic human rights law and policy. Canadian courts can and have explicitly cited them to guide legal decision-making, particularly when there is ambiguity about interpreting a domestic human rights statute. [109]

“The Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.”  – Supreme Court of Canada[110]

Article 18 of the Universal Declaration of Human Rights (UNDHR) states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Articles 2 and 7 of the UNDHR also extend equal protections to all persons under law, without distinction of any kind, including based on religion.[111]

Article 18 of the International Covenant on Civil and Political Rights (ICCPR), 1966 states further:

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.[112]

Article 2.2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) sets forth minimal standards and provides an internationally recognized framework for measuring the human rights of Indigenous peoples around the world. It also has provisions for protecting the rights of Indigenous peoples to practice their religious and spiritual beliefs.[113] For example, Article 12(1) states:

Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.[114]

Canada has ratified the UNDHR, ICCPR, ICESCR and UNDRIP, and is also a signatory to the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981, which calls for national legislation (and by implication provincial legislation) to extend these same rights. [115]

[92] See Haykin v. Roth, 2009 HRTO 2017 (CanLII), [Haykin], confirming that harassment in services can be prohibited as discrimination under the Code.

[93] See Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (CanLII); ADGA Group Consultants Inc. v. Lane (2008), 91 O.R. (3d) 649 (Ont. Div. Ct.) [ADGA v. Lane] and Osvald v. Videocomm Technologies, 2010 HRTO 770 (CanLII) at paras. 34 and 54.

[94] Section 47 of the Code reads: (1) This Act binds the Crown and every agency of the Crown. (2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. R.S.O. 1990, c. H.19, s. 47 (2).

[95] See e.g. Loyolasupra note 8 at paras. 59-60. The associational dimension of creed rights is also addressed in section 8, which discusses among other things Code defences and exemptions granted to religious organizations, in recognition of this collective dimension of creed rights and expression.

[96] Recognizing the defining role of religion in people's lives, worldview and identity, the Supreme Court of Canada affirmed that religion is "constructively immutable" because it is "changeable only at unacceptable cost to personal identity." Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 13.

[97] Moonsupra note 70, cited in Loyola, Supreme Court of Canada, supra note 8 at para. 44. See also Saguenaysupra note 41 at para. 73, citing Moon: “Professor R. Moon points out that a religious belief is more than an opinion. It is the lens through which people perceive and explain the world in which they live. It defines the moral framework that guides their conduct. Religion is an integral part of each person’s identity.”

[98] It is well-established in law that people protected under the ground of creed are entitled to the same level of protection as people protected under other Code grounds. Arguments that a person can avoid discrimination or intolerance by modifying their behaviours or beliefs and making different choices has been rejected as a justification for discriminatory behaviour (see e.g. the Supreme Court of Canada decision in Quebec v. A., supra note 33 at paras. 336-337).

[99] See section 7.8 for more information.

[100] See section 7.10 on “Reprisal” for more information.

[101] See Knibbs v. Brant Artillery Gunners Club, 2011 HRTO 1032 (CanLII) [Knibbs], and Petterson and Poirier v. Gorcak (No. 3), 2009 BCHRT 439 (CanLII) [Petterson].

[102] The Code, in contrast, applies to both the public sector and private entities.

[103] The equality provisions of the Charter in section 15 state:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).

[104] Big Msupra note 5 at paras. 94-95.

[105] In Big M, ibid, the Supreme Court of Canada stated (at paras. 122-123):

[An] an emphasis on individual conscience and individual judgment also…lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self‑government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democractic political system that American jurisprudence has emphasized the primacy or “firstness” of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as “fundamental.” They are the sine qua non of the political tradition underlying the Charter.

Viewed in this context, the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

See also Amselem, supra note 5 at para. 1; Edwards Bookssupra note 5 at 759.

[106] Big Mibid at paras. 122-123. See also R. v. Little, 2009 NBCA 53 (CanLII) at para. 6, stating in obiter: “Of course, s. 2(a) does more than protect religious beliefs. It makes room for the conscientious objector whose judgment is informed by other sources.” Although there has been no majority decision where the Supreme Court has defined “freedom of conscience” as distinct from “freedom of religion,” the courts have generally interpreted conscience in ways that encompass conscientiously-held non-religious beliefs, whether grounded in “secular morality” (R. v. Morgentaler, [1988] 1 SCR 30 at 179, Wilson J), the positions of “atheists, agnostics, sceptics and the unconcerned” (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 [Hutterian Brethren] at para.90; see also Simoneau c. Tremblay, 2011 QCTDP 1 (CanLII) at paras. 208 and 209) or “profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being” (Edwards Bookssupra note 5 at 759).

[107]In Freitag v.Penetanguishene (Town), the HRTO clearly distinguished between the Charter freedom of religion and Code protections for creed (2013 HRTO 893 (CanLII) at paras. 27, 42) [Freitag HRTO]:

"The Charter and the Code are different statutory instruments and a finding of a breach of section 2(a) of the Charter is not dispositive of the allegations of discrimination before me under the Code

... [T]o the extent that observations from these [Charter section 2(a)] cases are imported into a Code analysis, they must be considered in a manner which is consistent with the long-standing interpretive principles which govern an analysis of discrimination under the Code. And although there are obvious linkages between section 2(a) of the Charter and the concept of discrimination, the different interpretive approaches to the Charter and the Code raise the possibility of two different outcomes even where the issues and evidence are similar in nature.”

Moon (2012) also highlights what he contends are necessary differences between analyses under the Code and Charter, in part because the Charter, unlike the Code, is principally concerned with the state’s action and legislative prerogative, and must consider unique related concerns, such as to not overburden or incapacitate the state in such functions. See Moon, R. (2012, March 29-30). Accommodation and compromise under s. 2(a) of the Charter. Paper presented at the Ontario Human Rights Commission/York University Legal Workshop on Human rights, creed and freedom of religion. Osgoode Hall, York University. Retrieved from https://docs.google.com/file/d/0BwFvhg37TTCjQVN4WkhqS2pTdm8/preview

See also Human rights and creed research and consultation report for more discussion of the relation between Code and Charter rights based on creed and religion.

[108] The Code prohibition of discrimination based on creed, in this respect, is more like the section 15(1) Charter right to “equality before and under the law...without discrimination based on...religion.”  Even here, the courts and tribunals have noted significant differences between Code and section 15 Charter discrimination analyses, and contexts of application, which are important to bear in mind when referring to Charter case law analyses in Code contexts. For more on the relationship between equality jurisprudence under the Charter and Code, see Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (CanLII) at para. 19; see also Freitag HRTO, supra note 107 at para. 41.

[109] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 69-71.The HRTO explicitly affirmed the relevance of international human rights law and jurisprudence, particularly when interpreting the ground of creed under the CodeR.C., supra note 67 at paras. 40-41.

[110] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, at para. 70.

[111] Article 2 states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 7 states:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

[112] Article 13 (3) of the International Covenant on Economic and Social Rights (ICESR) – ratified by Canada – similarly states:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

[113] The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations General Assembly in 2007, and ratified by the Government of Canada in 2010. UN declarations provide internationally recognised “standards” for measuring countries’ compliance with international human rights law (including norms, covenants and conventions). Although the Declaration is not legally binding in the same way that a Convention is, it reflects legal commitments that are already enshrined in existing international treaty commitments and may be considered international “customary law” and thus have legal effect.

[114] Also see Articles 8, 11, 12(2), 13, 18, 25, 31, 34 for more specific provisions on the rights of Indigenous peoples relating to the practice of their religious and spiritual traditions.

[115] Article 28 of the ICESR and Article 50 of the International Convention on Civil and Political Rights (ICCPR) provide that the provisions of these covenants (including Article 18 of the ICCPR) shall extend to all parts of federal States without any limitations or exceptions. For more on this, see the OHRC’s research paper, Human rights commissions and economic and social rights (www.ohrc.on.ca/en/human-rights-commissions-and-economic-and-social-rights/social-cultural-and-economic-rights-under-international-law).