Setting the context
Since the Ontario Human Rights Commission (OHRC) published its Policy on creed and the accommodation of religious observances (Policy on creed) in 1996, there have been significant legal and social developments in Canada and internationally that have shaped the experiences of communities identified by creed. There is also extensive public debate about the appropriate scope and limits of human rights protections for religion and creed in Ontario society.
The OHRC is currently updating its 1996 Policy on creed to reflect these developments. The goal is to clarify the OHRC’s interpretation of human rights based on creed under the Ontario Human Rights Code (the Code) and advance human rights understanding and good practice in this area. The update, which began in 2011, will take two to three years to finish. It will involve extensive research and consultation, and will draw on lessons learned from the OHRC’s recent work on the Policy on competing human rights.
To date, the OHRC has hosted two major consultation events, including:
- A policy dialogue on human rights, creed and freedom of religion on January 12 – 13, 2012 at the University of Toronto’s Multi-Faith Centre, in partnership with the University of Toronto’s Religion in the Public Sphere Initiative and Law School
- A legal workshop on human rights, creed and freedom of religion on March 29 – 30, 2012 at York University’s Osgoode Hall Law School, in partnership with York University’s Osgoode Hall Law School, Centre for Public Policy and Law and the Centre for Human Rights.
We then published selected policy dialogue papers in a special issue of Canadian Diversity. These papers, along with those from the legal workshop, are available on the OHRC website.
The OHRC has also done extensive research internally, including:
- A Creed case law review
- An environmental scan and literature review
- Data collection and analyzing applications currently at the Human Rights Tribunal of Ontario (HRTO).
The OHRC will be engaging in further research and public consultation in 2013-2014, in part based on responses to the Human Rights and Creed Survey, and feedback from a forthcoming Human Rights and Creed Research and Consultation Report that will be posted on the OHRC’s website in the Fall of 2013.
The Ontario Human Rights Code focuses on prohibiting discrimination in five protected social areas: employment; housing; goods, services and facilities; contracts; and vocational associations. Part of the OHRC’s role is to create policies that give the details for making this vision a reality.
To create relevant and responsive human rights policy, the OHRC needs to identify and understand past and present social trends and dynamics that contribute to contemporary forms of discrimination based on creed. This understanding helps the OHRC combat prejudice and intolerance, reduce tension and conflict, and address the root causes of discrimination in Ontario.
Research shows that there is growing religious and creed diversity in Ontario. While most Ontarians continue to identify as Catholic or Protestant, census data reveals particularly significant growth among religious minority groups outside of the historical Christian (Catholic and liberal Protestant) mainstream churches. Immigration accounts for much of this deepening religious diversity.
A growing number of Ontarians also report that they have ”no religion.” As well, increasing numbers of people of all faiths are living and practicing their faith in more individualized ways, detached from institutional structures and conventions. For instance, it is becoming more common for individuals and families to practice two or more religious/creed-based belief systems. All of these broader trends are projected to accelerate in the future.
Some of these trends are fairly recent. At least up until the 1960s, Canada was commonly viewed as a “Christian nation.” The state extended special privileges to a small number of Christian (mainly English Protestant and French Catholic) denominations. Christian Canadians played a central role in building many of Ontario’s current institutions, which people of all faiths continue to benefit from today. However, over this same period, religious minority groups regularly faced persecution and discrimination. Perhaps the most egregious example of historical efforts to assimilate non-Christian “others” was the forced Christian residential schooling of Aboriginal children in Ontario (see the Canadian Truth and Reconciliation Commission’s publication, They Came for the Children, available for download on the TRC website at www.trc.ca).
Since the 1960s, public policy and law has increasingly come to celebrate and embrace diversity, equality and non-discrimination. This has been accompanied by a new more secular approach in public life and state institutions. Many historic Christian privileges in public institutions have since been challenged and removed, as religion has generally become more privatized. At the same time, legal protections for creed and freedom of religion have increased since the Ontario Human Rights Code was introduced in 1962 and the Canadian Charter of Rights and Freedoms in 1982.
Hate crime statistics and social research show that prejudice and discrimination based on creed remain a stubborn problem in Ontario, and one that is growing in some cases. Over the past 20 years, newer forms of racism, antisemitism and Islamophobia have emerged, sometimes drawing on and reviving older (in some cases racialized) stereotypes. At times, this has led to the indiscriminate targeting of victims based on “perceived creed.”
Discrimination and prejudice targeting Muslims has been particularly pronounced in the post-911 period. This is reflected in Human Rights Tribunal of Ontario (HRTO) complaints (called applications). Muslims were the most over-represented creed group among HRTO applicants, accounting for more than one-third (36%) of all HRTO applications citing creed in the 2011-12 fiscal year. Antisemitism, discrimination and hate crimes against Jewish people also continue to be a problem. A study by the League for Human Rights of B'nai Brith said that antisemitic incidents more than doubled in the past 10 years. Some 10.7% of all HRTO complaints citing creed as a ground in the 2011-12 fiscal year involved persons self-identifying as Jewish (second highest among creed groups, when different Christian denominations are considered as separate groups).
Research also suggests that Aboriginal Peoples continue to face significant barriers practicing Ontario’s longest standing spiritual traditions, which are often misunderstood or inadequately recognized by institutional authorities as warranting accommodation. Hindus, Buddhists and Sikhs also spoke of facing various barriers to their religious accommodation in OHRC consultations to date. Due to the actual and/or perceived close relationship between ethnicity and religion, experiences of creed discrimination by some members of these communities were sometimes compounded by various forms of racism and xenophobia. Members of newer, smaller and lesser-known faith communities, as well as atheists, agnostics and people without any religious affiliation, also spoke of facing various forms of stigma, prejudice and discrimination.
Human Rights Tribunal of Ontario (HRTO) applications filed between 2010 and 2012 show that a majority of human rights applications involved claims of discrimination in employment. Most applications were filed in the central region, clustering around the Greater Toronto Area in particular. An overwhelming majority of HRTO applications citing creed over this period also cited a race-related ground (such as race, ancestry, colour, ethnic origin, place of origin) as an intersecting basis of discrimination. While applications citing creed accounted for 6.8% of all applications filed at the HRTO in the 2011-2012 fiscal year, this number likely does not reflect the full extent of discrimination based on creed actually occurring in Ontario over this period, due to such factors as under-reporting, mis-reporting and the unknown outcome of applications.
Religious and creed communities also continue to encounter less obvious, but equally significant, structural forms of discrimination and inequality. In some cases, this is a result of the differential impact on creed communities of past religious privileges and norms in society, as these play out in the present. In other cases, it is a result of newer and more aggressive and ideological “closed” forms of secularism that seek to shut out all forms of religion from public life, ironically in the name of keeping the public sphere “neutral.” In this context, a growing number of Christian Ontarians have spoken about feeling increasingly marginalized, as “minorities” in the current environment, including people affiliated with denominations that form a numeric majority in this province. This is reflected in HRTO complaints citing creed as a ground of discrimination. Over a third of these were filed by persons from Christian denominations in the 2011-12 fiscal year (next only to Muslims, among creed groups).
While the reality on the ground can sometimes differ, Canadian courts have nevertheless made clear that the Canadian legal understanding of secular remains “open” and “inclusive” of religion, which means accommodating, and neither favouring nor disadvantaging or excluding, religion in the public sphere, in keeping with the Charter and Code
What is creed?
“Creed” is one of the Code’s prohibited grounds of discrimination. The Code does not define it, but the OHRC defined the term creed in its 1996 Policy on creed and the accommodation of religious observances as “religious creed” or “religion,” broadly conceived. While every Ontarian, according to the 1996 policy, has a right to be free from “discriminatory or harassing behaviour that is based on religion or which arises because the person who is the target of the behaviour does not share the same faith” (including atheists and agnostics), the same policy goes on to state that creed “does not include secular, moral or ethical beliefs or political convictions.” The 1996 policy also states that creed human rights protections do “not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that purport to have a religious basis but which contravene international human rights standards or criminal law.”
Since the OHRC’s 1996 policy, courts and tribunals have increasingly had to grapple with what qualifies for human rights protection on the ground of creed. Several recent cases have involved non-religious belief systems, including ethical veganism, atheism and political belief. This and other legal considerations and social trends (including the significant growth of Ontarians identifying as having no religion, and potentially deriving moral direction and meaning in life from non-religious belief systems) have helped to bring the question of defining creed to the forefront of the current policy update.
Most tribunal and court decisions have interpreted creed as the same as “religion,” in keeping with the OHRC’s 1996 policy position. However, other decisions have left open the possibility that non-religious beliefs may be a creed under the Code. Overall, the courts appear to be reluctant to offer any final, authoritative, definitive or closed definition of creed. Instead, they prefer a more organic, analogical (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”) case-by-case assessment.
Courts and tribunals have also recognized a wide variety of religious and spiritual beliefs under human rights legislation and the Charter, including Aboriginal spiritual practices, Wiccans, Raelians and Falun Gong practitioners. There appears to be nothing in the Code-based case law that would prevent the OHRC from redefining creed more broadly and inclusively in its updated policy.
Indeed, the use of the term “creed” rather than “religion” in the Code may suggest that they are meant to have different meanings. The courts have nevertheless offered some guidelines on the outer limits of what they will recognize under the Code ground of creed (see the Creed case law review and the upcoming Human rights and creed research and consultation report).
The duty to accommodate creed beliefs and practices is well established in Ontario human rights law. Organizations governed by the Code also have a responsibility to design services, programs and employment systems inclusively so that all Ontarians can equally benefit and take part in them. Putting such ideals into practice, however, can be challenging for organizations.
To comply with the Code duty to accommodate creed beliefs and practices, there are challenges when determining:
- sincerity of belief
- the extent and scope of the duty to accommodate, and to inclusively design for, creed beliefs and practices
- how to accommodate group-based creed observances
- appropriate accommodation arrangements, processes, roles and expectations for accommodation providers and seekers.
Common types of accommodation based on creed, where issues can arise, include:
- Providing days off for Sabbaths and religious holy days
- Providing time and space for prayer
- Modifying dress codes and safety requirements to accommodate religious attire and the wearing of religious objects (such as wearing a headscarf in sporting events)
- Providing exemptions and alternatives to photo and biometric identification
- Providing acceptable food options
- Exempting individual employees and service providers from tasks that violate their religious conscience (for example, serving alcohol, providing blood transfusions, etc.).
The OHRC is interested in hearing more about the practical challenges individuals and organizations face when accommodating creed beliefs and practices, and any other accommodation challenges you think should be addressed in the updated policy.
 Among Christian denominations, people self-identifying as “Roman Catholic” or simply “Christian” in their application accounted for the largest number of Christians filing human rights applications at the HRTO in the 2011-12 fiscal year (both 9.3 % respectively), followed by people self-identifying as Seventh Day Adventist (5.7%) and Christian Orthodox (2.9%).
 See Ketenci v. Ryerson University, 2012 HRTO 994 (CanLII).
 For example, R.C. v. District School Board of Niagara, 2013 HRTO 1382 (CanLII).
Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII).
 According to the 2011 National Household Survey (NHS), by 2011, almost one-quarter of Ontario residents (23%) were religiously unaffiliated, compared to 5% in the 1971 census.
 See Kelly v. British Columbia (Public Safety and Solicitor General) (No. 3), 2011 BCHRT 183 (CanLII).
 Re O.P.S.E.U. and Forer (1985), 52 O.R. (2d) 705 (C.A.).
 Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460 (CanLII).
Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII).