Fifteen years ago, the OHRC created a policy on creed, a ground that has been part of the Human Rights Code since its beginnings 50 years ago. It’s time to update the policy to reflect today’s society.
This policy project will involve an Ontario-wide consultation. One part of this is to invite scholars to share their views on how creed should be defined, and the important issues relating to creed.
In January 2012 the OHRC brought together community partners, academics, legal professionals and human rights and diversity practitioners from diverse backgrounds to a Policy Dialogue on Human Rights, Creed and Freedom of Religion. The essays in this special issue of Canadian Diversity look at creed issues from many different perspectives, and will help guide us as we move further into the consultation.
The essays were initially selected through a public Call for Papers and were presented at the Dialogue. Several papers on Human Rights and Creed were also presented at an OHRC Legal Workshop held in March 2012. We hope these submissions serve as one of several opportunities to broaden the creed policy conversation.
What will the policy update include?
Since the 1996 publication of the OHRC’s Policy on Creed and the Accommodation of Religious Observances, there have been many important legal and social developments in Canada and internationally. These developments have changed the way creed and religion are understood, and shaped the experiences of individuals and communities identified by creed. There has been much public debate on the appropriate limits and protections of rights relating to religion and creed in Ontario society.
This policy update aims to clarify the OHRC’s interpretation of human rights on the basis of creed under the Code, and advance human rights understanding and good practice in this area.
The creed policy update will require extensive research and consultation. Documents will be published on the website over the course of the update, including a case law review, research papers, discussion papers and a survey.
The policy update will take two to three years to complete (work began in 2011) and will draw on lessons learned from the OHRC’s recent work on a “competing rights” policy. The Commission’s Policy on Competing Human Rights and Human Rights and Creed Case Law Review will be posted on our website in Spring, 2012.
What does “creed” mean?
Ontario’s Human Rights Code protects everyone from discrimination and harassment based on creed.
Creed is not defined in the Code. The 1996 Policy on Creed and the Accommodation of Religious Observances said:
Creed is interpreted to mean “religious creed” or “religion”. It is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God of gods, or a single supreme being or deity is not a requisite.
Religion is broadly accepted by the OHRC to include, for example, non-deistic bodies of faith, such as the spiritual faiths/practices of aboriginal cultures, as well as bona fide newer religions (assessed on a case by case basis).
While the Code uses the term “creed”, other human rights laws in Canada use “religion” or both “creed” and “religion”. Section 2(a) of the Canadian Charter of Rights and Freedoms guarantees freedom of religion as a fundamental freedom in Canada. The fact that both creed and religion are used in Canadian human rights legislation (and sometimes even used in the same statute) suggests that they do not mean exactly the same thing and should be interpreted to have independent meanings. As well, the term for ‘creed’ in the French version of the Code - ‘la croyance’ – is often translated into English as ‘belief’. The meaning of both the English and French terms must be considered when interpreting this ground of discrimination. A key part of the Policy update will be the examination of the boundaries and meaning of “creed”.
Since the 1996 policy, the leading decision interpreting what is meant by ‘religion’ is the Supreme Court of Canada’s decision in Syndicat Northcrest v. Amselem (“Amselem”). The court adopted a broad definition of religion under s. 2(a) of the Charter, similar to the definition used for creed in the OHRC’s 1996 policy:
Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
Both religion and creed are defined subjectively. The focus is on the sincerity of the religious belief or practice, rather than on its validity. There is no list of “official” religious beliefs and no set way each religion is required to be followed. A growing range of non-traditional and non-deistic religions, such as Falun Gong, Wicca, and Raelianism have been found by the courts to be creeds. However, the Court of Appeal for Ontario has found that political opinions are generally not considered a creed under the Code (Jazairi v. Ontario Human Rights Commission).
The right to be free from discrimination and harassment based on creed
Under the Code, organizations have a legal duty to accommodate creed-based observances up to the point of undue hardship and to keep their environments and services free from harassment and discrimination because of creed or religion.
Since 1996, human rights decisions on creed show there are still discriminatory attitudes towards minority religions. These attitudes result in unequal treatment on the basis of creed (in many cases linked with other Code grounds such as race, colour, ethnic origin, place of origin and ancestry). Other decisions suggest that religious tensions as a result of international events (such as 9/11) can result in religious discrimination in Ontario. Still others suggest a growing discomfort with those who openly identify as religious, regardless of the particular religion practiced.
Much of the law on discrimination based on creed deals with defining “accommodation to the point of undue hardship”. Here, again, the law continues to evolve, particularly in the areas of accommodating religious dress (such as turbans, niqabs and veils) and religious holy days. In recent years, courts and human rights tribunals have ruled that employers do not necessarily have to provide non-Christians with an equivalent number of paid days off for religious holy days to match the two Christian holidays (Christmas and Good Friday) traditionally given to all employees. Rather, depending on the circumstances, employers may be able to fulfill their duty to accommodate by searching for solutions that permit time off without negative employment consequences (such as loss of pay), through scheduling changes, overtime, lieu time etc.
Protection includes freedom from the imposition of religion
Freedom of religion and the right be free from discrimination based on creed under the Code include the right to be free from religious pressure. Whether a person practices any religion or creed or not, he or she has the right to be free from the imposition of the religious beliefs and observances of others.
The Code allows for some exemptions
The Code allows for some exemptions from the general prohibition against discrimination based on creed. For example, a religious organization providing programs and services for a specific creed-based community might get an exemption to hire employees of the same creed, depending on the kind of service or job being provided, as long as holding the belief was genuinely needed in order to do the job.
No right is absolute – there may be limits
Under the Code, no right is absolute, and there is no hierarchy of grounds. This means that no one ground would automatically trump any other ground. This includes creed rights, particularly where the rights of others are impacted. In such cases, there may be a need to balance claims based on creed with other competing rights, such as disability, sexual orientation or sex.
Please continue to check for updates to this page and for new information as our work on creed continues.