Creed is one of the prohibited grounds of discrimination under the Ontario Human Rights Code. The Code does not provide a definition of creed, but in the 1996 OHRC Policy on creed and the accommodation of religious observances, it was defined as follows:
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 or gods, or a single supreme being or deity is not a requisite.[220]
The (1996) Policy conceives of religion broadly “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)”.[221] Nevertheless, it drew a clear line at religion, explicitly stating that “[c]reed does not include secular, moral or ethical beliefs or political convictions”.[222] The Policy also stated that it “does 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”.[223]
Since the 1996 Policy, the courts and HRTO have increasingly had to grapple with what legitimately qualifies for human rights protection on the Code ground of creed (as discussed below). Several recent cases have involved non-religious belief systems, including ethical veganism,[224] atheism[225] and political belief.[226] Cases like these, combined with other legal developments and broader social trends (including the growth of non-religious forms of belief and affiliation) have helped to bring the question of how to define creed to the forefront of the current policy update.
Most HRTO and court decisions based on the Code have interpreted creed to mean religion, as defined in the OHRC’s (1996) policy position.[227] Black's Law Dictionary equates creed with religion when it defines creed as a “confession of articles of faith, formal declaration of religious belief, any formula or confession of religious faith, and a system of religious belief.”[228] Similarly, Tarnopolsky and Pentney's Discrimination and the Law states that creed and religion are “essentially synonymous” terms.[229]
However, there are notable exceptions to this trend. In R.C. v. District School Board of Niagara, [230] the HRTO found that protection against discrimination based on creed extends to atheism. The HRTO stated that prohibiting discrimination because of creed includes “ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.”[231]
Various other cases have left open the possibility that non-religious belief may constitute a creed under the Code (as discussed below). Overall, the courts appear to be reluctant to offer any final, authoritative, definitive or closed definition of creed, preferring a more organic, analogical (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”)[232] case-by-case assessment. This has yielded a variety of results. Courts and tribunals have recognized a wide variety of subjectively defined religious and spiritual beliefs within the meaning of creed under the Code and religion under the Charter, including:
There is nothing in the case law that would prohibit redefining “creed” more broadly and include secular ethical and moral beliefs. Therefore, the question of what should constitute a creed in terms of the right to be free from discrimination under the Ontario Code – in particular with respect to secular, moral or ethical beliefs – remains an open one. In fact, this is a central question being considered in the current creed policy update. At the same time, the courts have offered some guidelines around the outer limits of what they will recognize as meriting protection under the Code ground of creed (as discussed below).
As well, applying principles of statutory interpretation, it can be argued that creed and religion can and do mean different things (for further discussion, see OHRC Case Law Review and Section 3, below).
[220] See the OHRC’s Policy on creed and the accommodation of religious observances, 1996, p. 4.
[221] Ibid, p. 4. The Policy also states that “[t]he existence of religious beliefs and practices are both necessary and sufficient to the meaning of creed, if the beliefs and practices are sincerely held and/or observed”.
[222] Ibid, p. 5..
[223] Ibid, p. 5. The Policy further states in an endnote: “Not only are such groups not protected under the Code, but they may also be subject to provisions of the Criminal Code. Any reports of activities involving such groups should be immediately reported to the police. For example, female genital mutilation is a violation of women's human rights and is not protected on the ground of creed. See the OHRC's Policy on female genital mutilation.
[224] See Ketenci v. Ryerson University, 2012 HRTO 994 (CanLII).
[225] R.C. v. District School Board of Niagara, supra note 8.
[226] Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII).
[227] See Creed case law review (2012) and Chiodo (2012a) for summary of some decisions in this respect.
[228] 6th edition, 1990.
[229] Tarnopolsky and Pentney, 1985, p. 61.
[230] Supra note 8.
[231] Ibid., at para. 30. In his decision in favour of the atheist applicant, HRTO Associate Chair, David Wright, further stated, at para. 31:
“…Protection against discrimination because of religion, in my view, must include protection of the applicants' belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind and the world. The applicants' beliefs relate to religion, and engage the purpose of ensuring that people are treated equally regardless of their views and practices on religious matters. It is not necessary in this case to decide whether creed may in some cases encompass core beliefs about fundamental matters other than religion.”
[232] See Kislowicz (2012) for more on the strengths of this analogical approach.
[233] See Kelly v. British Columbia (Public Safety and Solicitor General), supra note 11.
[234] Re O.P.S.E.U. and Forer (1985), supra note 12.
[235] Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567.
[236] Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460 (CanLII).
[237] Huang, supra note 14.
[238] Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.
[239] In this particular grievance arbitration decision, the labour arbitrator did not discuss why participation in the Rocky Mountain Mystery School, an organization that “teaches the ancient practice and knowledge of light and light work in the world” was a creed. Instead, the arbitrator focused on whether the employer was required to accommodate the employee’s request for time off to attend a pilgrimage (Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, [2010] C.L.A.D. No. 298 (QL). In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged.
Some of the main arguments for not limiting the OHRC policy definition of creed to religion are derived from principles of statutory construction and interpretation. Among those discussed below include:
One key aid to considering the statutory interpretation of the meaning of creed in the Code is the “presumption against tautology.” This presumption assumes that the legislature has carefully chosen each word of a statute so it will not be confused with other similar words, or be redundant or superfluous.[240] Similarly, the “presumption of consistent expression” assumes that the legislature uses language carefully and consistently so that identical words in a statute have the same meaning and different words have different meanings.[241]
However, there are some exceptions to these rules, both in the case of the presumption of consistency and the presumption against tautology.[242]
Statutes from other jurisdictions within Canada that deal with similar subject matter can also be considered as an aid to statutory interpretation. [243] For example, in B. v. Ontario (Human Rights Commission), the Supreme Court noted, in the context of interpreting the meaning of the ground of marital status in Ontario: “we agree that statutory language from other jurisdictions may aid in the interpretation process…”[244] The Court was considering the impact of the definition of marital status under Saskatchewan’s human rights legislation, which expressly excluded the particular identity of a person’s spouse from the ground of marital status (while Ontario’s Code does not). The Court said: “the express exclusion of particular identity in the Saskatchewan Code and the absence of that exclusion in the Ontario Code lends itself more easily to the conclusion that the broader meaning of status was, in fact, intended in Ontario.”[245] In other words, the fact that the Saskatchewan Code defined marital status differently than Ontario’s Code weighed in favour of a conclusion that the Ontario Code intended something different.
The Ontario Code prohibits discrimination based on creed, but does not list religion as a prohibited ground. The word “religion” does not appear in the Code. However, the word “religious” is used in sections that deal with statutory defences for special interest organizations (s.18) and special employment (s. 24). In addition to creed, the terms “religion,” “religious belief” or “religious creed,” and “political belief” appear in other Canadian human rights statutes (see Figure 3 below, listing creed-related terms in use around the country, as affirmed in human rights statutes and/or case law).
|
Legislation |
Prohibited grounds |
|
Canadian Human Rights Act (1977) |
religion |
|
British Columbia Human Rights Code (1969) |
religion and political belief |
|
Alberta Human Rights Act (1966) |
religion and political belief |
|
Saskatchewan Human Rights Code (1979) |
religious creed and political belief |
|
Manitoba Human Rights Code (1970) |
religion or creed, or religious belief, religious association or religious activity |
|
Ontario Human Rights Code (1962) |
creed |
|
Quebec Charter of Human Rights and Freedoms (1975) |
religion, political convictions NB: Also affirms freedom of conscience, freedom of religion, [246] and freedom of opinion among other freedoms in Ch.1(3) |
|
Nova Scotia Human Rights Act (1963) |
religion, creed, and political belief, affiliation or activity |
|
New Brunswick Human Rights Act (1967) |
religion and political belief and activity |
|
Newfoundland Human Rights Act (1969) |
religious creed, religion and political opinion |
|
Prince Edward Island Human Rights Act (1968) |
religion, creed and political belief |
|
Yukon Human Rights Act (1987) |
religion or creed, or religious belief, religious association or religious activity and political belief |
|
Nunavut Human Rights Act (2003) |
creed, religion |
Note: Dates refer to first year enacted, not to terms in existence at that time.
Research into interpreting such varied terms used across the country found that, much as in Ontario, there are very few definitions in statutes, policies and case law. Exceptions are the definition of religion (drawing on Syndicat Northcrest v. Amselem,[247] and P.E.I.’s definition of “political belief” as referring only to beliefs of parties as defined in their Elections Act. In Wali v. Jace Holdings Ltd.[248], the British Columbia Human Rights Tribunal grappled with the definition of political belief. It suggested that not just any political belief would be covered, but rather beliefs in respect of a system of “social cooperation”. It found that the applicant had experienced discrimination based on his political beliefs, because he was dismissed in part because of his personal political position on the regulation of pharmacy technicians by the College of Pharmacists.[249]
Applying the aids to statutory interpretation discussed above, it may be argued that the terms religion and creed mean different things in Ontario and Canadian human rights law, since:
The principle of avoiding logical absurdities and absurd consequences when trying to resolve cases of statutory ambiguity may arguably be another relevant aid to statutory interpretation.[250] While some scholars have noted the potential for absurdity, it is by no means clear that this interpretative principle provides much help in interpreting the meaning of creed.
Labchuck (2012) and Szytbel (2012) suggest that one absurdity that may result from confining creed protections to religion is that nearly identical but differently sourced beliefs in ethical veganism will be protected differently.[251] Labchuck provides the example of four different types of ethical vegans:
Interpreting creed in a way that excludes secular beliefs, Labchuk argues, would result in the apparent logical absurdity of only extending human rights protection under the Code to the first two, even though they may all be equally committed to the same ethical vegan beliefs (or even members of the same organization).
Legal analysts have highlighted other possible logical absurdities, inconsistencies and exclusions that inevitably result from any effort to universally define, and delimit for the purposes of law, what constitutes a religion.[252] Others have pointed to further logical contradictions in the OHRC’s (1996) Policy definition of creed as excluding “secular, moral or ethical beliefs.” This appears to suggest that both secular and moral or ethical beliefs more generally are excluded from protection. Critics argue that divorcing religious beliefs (which are protected) from “moral or ethical beliefs” or “political beliefs” for that matter (both of which are not protected according to the wording of the policy) is illogical since morals and ethics are often derived from religion, among other potential sources (including secular ones).[253]
Another principle of statutory interpretation is the equal standing and regard that must be given to both the English and French language version of the Code in determining its appropriate interpretation. When interpreting a bilingual statute, the first step is to search for the shared meaning of the English and French versions; in this case, “creed” and “la croyance.” Second, it is necessary to determine whether the shared meaning is consistent with Parliament’s intent.[254] If one language version gives better effect to the purpose of the Code, that version should be selected, even if a narrower meaning would be common to both versions.[255]
The French language version of the Ontario Human Rights Code uses “la croyance.” This term is often translated into English as “belief,” rather than more narrowly as “religion,” suggesting the potential for a broader interpretation of creed beyond religion, as affirmed by the HRTO in R.C. v. District School Board of Niagara. [256]
Proponents of expanding the definition of creed beyond religion argue that the Code should be interpreted harmoniously with Section 2(a) of the Charter, which includes both freedom of religion and freedom of conscience. The OHRC’s review of the case law on freedom of conscience reveals that 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,”[257] the positions of “atheists, agnostics, sceptics and the unconcerned,”[258] or “profoundly personal beliefs that govern one's perception of oneself, humankind, nature and, in some cases, a higher or different order of being.”[259]
For example, in Roach v Canada (Minister of State for Multiculturalism and Culture), [260] Charles Roach, the claimant, unsuccessfully challenged the requirement that new citizens declare an oath or affirmation of allegiance to the Monarch, on the basis that it would violate his freedom of conscience under section 2(a) of the Charter. In his decision, Linden, JA distinguished between freedom of conscience and freedom of religion:
It seems…that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under para. 2(a) of the Charter...However, as Madame Justice Wilson indicated, "conscience" and "religion" have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by para 2(b)[freedom of expression]. (Emphasis added; see also Justice Wilson’s concurring decision in R. v Morgentaler[261]).
Given the overlapping objectives of the Charter and the Code, and the fully (versus quasi) constitutional status of the Charter, some argue, citing Human Rights Tribunal of Ontario (HRTO) and court decisions,[262] that interpretations of the Code, particularly in cases of statutory ambiguity, should be made congruent with the interpretations, values and terms of the Charter. This was recently affirmed in an October 9, 2012 HRTO decision in McKenzie v. Isla, where the Vice-chair stated:
The Tribunal has emphasized that ambiguity in the scope of Code rights should be resolved in favour of protecting matters at the core of the rights and freedoms in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”).[263]
Labchuck and Chiodo argue that including secular moral and ethical beliefs under “creed” in the Code is consistent with giving full effect to the more fundamental right to freedom of religion and conscience under Section 2(a) of the Charter.[264]
At the same time, the extent that the aims and purposes of ”equality” jurisprudence under the Code ground of creed are, or should be, consistent with the aims and purposes of liberty jurisprudence under section 2(a) of the Charter remains a contested point. Some scholars caution against “Charter imperialism”[265] and the conflation of these two distinct purposes and analyses in recent court decisions. In Freitag v.Penetanguishene (Town) 2013 HRTO 893 (CanLII), the Tribunal clearly distinguished between Charter and Code protections for religion and creed in its decision.[266]
One could also argue that the Code’s anti-discrimination provisions on the ground of creed bear a closer relationship to, and are therefore best compared and harmonized with, the Charter right under Section 15(1) to “equality before and under the law...without discrimination based on...religion.”[267] Notably absent, in such Charter s.15 provisions, are matters of conscience and belief extending beyond religion, from which one could argue interpretations of the Code should take their cue.[268] The OHRC is not aware of conscience being recognized as an analogous ground.
The OHRC’s 1996 Policy on creed states: “Freedom of religion is the basic principle that informs the right to equal treatment under the Code on the ground of creed” (p.5). In an accompanying endnote, it derives this interpretation from a reading of the Code’s Preamble.[269] Much appears to hinge on how one interprets the purpose of the Code, in particular how one balances the overlapping goals of protecting individual dignity and broader social purposes such as creating a “climate of mutual respect” and advancing “equal rights and opportunities without discrimination.”[270] While the language of the Preamble is clearly central in this consideration, the courts have made it clear that one must also consider how the higher courts have interpreted the purposes of human rights statutes across jurisdictions in the case law.[271]
Some legal analysts and scholars argue that including secular ethical and moral beliefs for human rights protection under the Code ground of creed is most consistent with a liberal and purposive reading of the Code, as called for by its ”quasi-constitutional” status.[272] They cite supporting court decisions affirming that:
Mindful of the progressive function and mandate of the OHRC,[275] some analysts argue that is entirely within the spirit and mandate of the Code and OHRC to help to “ensure that similar beliefs are granted similar degrees of protection – regardless of whether they are rooted in religion or a secular basis.”[276]
This view finds support in the HRTO’s (2013) decision on whether atheism counts as a creed protected by the Human Rights Code, in which the adjudicator, Associate Chair David Wright, conclusively found in the applicant’s favour that ”a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’ includes atheism and that discrimination because a person is atheist is prohibited by the Code.”[277]
“I think there is a strong argument for creed going beyond religion when you’ve got similar beliefs occupying a place of similar importance for non-religious persons.”
– March 2012 Legal Workshop participant
”[T]he distinction [between religious creeds, which receive full Code protection, and secular moral or ethical belief systems, which do not] appears to many observers to be arbitrary, and implies that familiar or favoured creeds are “real” beliefs, while different or new creeds are not beliefs or are only pseudo-beliefs”.[278]
Another main argument for expanding the definition of creed to include secular ethical and moral beliefs concerns transformations in society and belief in the contemporary era. How people make sense and meaning of their lives and the world today has changed significantly in the modern era,[279] particularly since the 1960s. Observers argue that religion is no longer the only, or primary, arbiter of morality and identity, but rather one among many others in the contemporary era. These observers think it is particularly important to equally recognize religious and non-religious bases for belief and moral action in the current social environment of diversifying and individualizing belief systems, declining significance and centrality of religion for, and the growing numbers of people professing deeply held non-religious beliefs (as explored in Background Section III above).
The idea that only religions have a deep social or communal basis, or anchoring in social relations of inequality (thus uniquely meriting protection and remedying under the Code) was also contested. One Legal Workshop participant argued, noting similarities between deeply held secular and religious beliefs and matters of conscience:
If you think about things that overlap but are not identical, you get to those deeply held beliefs that cannot be changed – or only at deeply personal cost. We’re not here to protect the frivolous. We’re here to protect the marginalized, and atheists and pacifists have historically been marginalized in our society.
Others, including some religion studies scholars, argued that distinctions between religious and non-religious beliefs and practices are fast blurring, as exemplified in the increasing individualism and fluidity of religious and non-religious belief, identity and affiliation, and declining importance and significance of stable and enduring forms of community. “Secular beliefs may play a fundamental role in a believer’s life that is nearly indistinguishable from the role religion plays in the lives of others,” Labchuck also argues, pointing to the difficulty of drawing a “hard and fast boundary between religious and other beliefs.” She argues:
Both refer to orienting commitments that help give meaning and direction to life. Secular beliefs may be the ethical and moral equivalent of religious beliefs. They may play an equally or more profound role in the lives of believers than religion plays in the lives of those who attend church but may pay mere lip service to the ideals preached at their place of worship.[280]
“Recognizing that non-religious viewpoints can also constitute comprehensive claims to the truth,” and function in ways very similar to religion, Chiodo further argues, may help “change our perspective on many [secular] worldviews that are incorrectly perceived as neutral”.[281]
While many argued that extending creed protections to non-religious beliefs was simply a sensible or good thing to do given current social trends, others offered a stronger legal onus to do so. Some argued that the principle of interpreting the Code liberally and purposively, in keeping with its quasi-constitutional status, assumes that the courts will interpret human rights organically and progressively in accord with such evolving social trends, values and conceptions within society. [282]
“Beginning a court proceeding on the basis of a distinction between legitimate and illegitimate belief is an offensive way to start a court process.”
– January 2012 OHRC Policy Dialogue participant
The OHRC heard many arguments for leaving the definition of creed open-ended – neither continuing to commit to the existing closed definition of creed as religion, nor positively stating what other kinds of (non-religious) beliefs may qualify for human rights protection. People argued that leaving the definition of creed open-ended – but with some threshold criteria as already determined by the courts – will enable rights protections to adapt and evolve in tune with emerging societal developments, patterns of inequality and discrimination, and the evolving and dynamic nature of belief and practice in the modern era. Some argued that not defining creed will also free persons of various minority beliefs and faiths – e.g. practitioners of Aboriginal spirituality – from having to force fit their beliefs and practices into a predefined, and for some, alien, western categorical mold (such as religion).[283]
In his (2012) paper for the January 2012 OHRC Policy Dialogue, “Trying to Put an Ocean in a Paper Cup: An Argument for the Un-definition of Religion,” Howard Kislowicz argues that “because the lived religious experiences of individuals and communities are so diverse” and continually evolving, “a more appropriate response may be to refuse to adopt a comprehensive, a priori definition of religion altogether,” to avoid having the ironic impact of stifling religious freedom in its name.[284]
The same could be said about creed. Kislowicz ultimately argues for “keeping with the common law approach of dealing with cases as they arise”[285], based on contextual analogical reasoning (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”) rather than opting for abstract definition. Reasoning by analogy, he argued, is already an embedded principle in law and thus should not be feared.
People arguing for an expanded definition of creed that includes secular ethical and moral beliefs cite domestic and international human rights case law and jurisprudence to support their position. Though not legally binding unless implemented by statute, international human rights laws and instruments set standards for domestic human rights law and policy. They can and have been explicitly cited by domestic courts to guide legal decision making, particularly when there is ambiguity about appropriately interpreting a domestic human rights statute. [286]
Article 18 of the Universal Declaration of Human Rights 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.
Bundling together the rights to freedom of thought, conscience, religion and belief in international law – also done in the International Covenant of Civil and Political Rights (ICCPR),1966[287] and the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981,[288] to which Canada is a signatory – can be interpreted to suggest that national legislation (as called for in Article 7 of the Declaration)[289] as well as provincial human rights statutes should extend this same breadth of rights.[290] Also, international human rights law and resolutions show a hesitancy to single out or distinguish between differing kinds of belief systems warranting protection, or to override subjective definitions of these.[291]
The HRTO explicitly affirmed the relevance of international human rights law and jurisprudence, in these respects, in R.C. v. District School Board of Niagara.[292]
In addition to noting such trends in international law, advocates for including non-religious beliefs within the scope of Code protections point to examples in other jurisdictions around the world. For instance, England protects “religion and belief” as prohibited grounds of discrimination in their Equality Act 2010, following the European Convention on Human Rights (ECHR, Article 9, 14) and international law (see section 4.1 below).[293] New Zealand and some U.S. states also extend protections to non-religious belief systems, such as ethical veganism.[294]
While much Code-based case law continues to equate creed with religion (as discussed earlier), there are notable exceptions to this trend. Various cases have affirmed or left open the possibility that non-religious belief may constitute a creed under the Code. Indeed, 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[295] case-by-case assessment, which has yielded a variety of results (see Creed case law review).
Courts and tribunals have had no difficulty recognizing a wide variety of subjectively defined religious and spiritual beliefs within the meaning of the Code, including Aboriginal spiritual practices,[296] Wiccans,[297] Hutterian Bretheren,[298] Raelians,[299] Falun Gong practitioners, [300] and members of the Worldwide Church of God[301] and Rocky Mountain Mystery School.[302] More importantly, there is nothing in the case law that would prohibit redefining creed more broadly to include secular ethical and moral beliefs. However, there are guidelines around the outer limits of what the courts will recognize under creed (see threshold criteria section below).
Among the notable case law examples where a broader definition of creed is contemplated by decision-makers is R.C. v. District School Board of Niagara,[303] and
Hendrickson Spring Stratford Operations v USWA, Local 8773. In the latter case, the decision-maker held that:
The term ”creed” in the [Human Rights] Code has a wide meaning and can “be taken to include almost any belief system that encompasses a set of particular religious beliefs but, as well, many other philosophical, secular and personal beliefs – the ”isms” (such as are bound up in words like ”environmentalism,” ”conservatism,” “liberalism” or “socialism”).[304]
In Rand v. Sealy Eastern Ltd., the Tribunal also contemplated the possibility of including non-religious beliefs, favourably citing Webster’s New International Dictionary definition of creed as “sometimes a summary of principles or a set of opinions professed or adhered to in science or politics.”[305]
In another formative 1998 decision, Jazairi v Ontario (Human Rights Commission), [306] the Ontario Divisional Court upheld the OHRC’s decision not to refer a complaint to a Board of Inquiry because “political opinions on a single issue” – in this case the claimant’s views on the matter of the Israel-Palestine conflict – did not amount to a creed under the Code. However, the Court acknowledged that there was a diversity of dictionary definitions of creed, some of which included secular belief systems.[307] The Divisional Court stated that although the term creed is capable of including a comprehensive set of principles, its ordinary meaning requires an element of religious belief. However, the Court went on to explicitly not rule out the possibility that a “political perspective, such as communism, made up of a recognizable cohesive belief system or structure,” could amount to a creed, though this question did not need to be decided in this case.[308] The Ontario Court of Appeal upheld the decision. It confirmed the importance of assessing each creed claim on its own facts and noted that whether or not some other political perspective that is made up of a cohesive belief system could amount to a “creed” was not before it. The Court of Appeal commented that it would be a mistake to deal with such important issues in the abstract.[309]
The tendency in several decisions to not rule on the definition of creed, and instead jump to a prima facie discrimination analysis on the assumption that the belief or practice in question could be a creed, may be one indication of the courts’ reluctance to define creed formally.[310]
Religion is more clearly defined in Canadian case law. The leading Supreme Court of Canada decision interpreting what is meant by “religion” is the decision in Amselem The court adopted a broad definition of religion stating:
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.[311]
Amselem clearly states that when dealing with religious freedom, only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected under the Quebec or Canadian Charter.[312]
The Court in Amselem went on to note that the content of an individual’s right to freedom of religion under the Charter is expansive and revolves around the notion of personal choice and individual autonomy and freedom. Some argue that, given the courts’ emphasis on personal choice and individual autonomy as the key underlying value and rationale for according rights to religion, there is no reason not to extend such rights to other kinds of beliefs (including beliefs of one), in the name of those very same values. Others further argue that the emphasis in Amselem and later decisions on the individual and subjective nature of religion – which downplay its distinctive communal, associational aspects – have blurred the lines between religion, creed and individual conscience, making the distinction between religious and non-religious convictions “increasingly hard to justify.”[313] Moon argues, “The focus on individual belief raises the question of why religious beliefs should be treated differently from other beliefs[?]”[314]
[240] See Sullivan and Driedger on the Construction of Statutes, 2002, pp. 158-161, citing a number of Supreme Court of Canada decisions. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53, the Supreme Court of Canada affirms this “legislative presumption against tautology” citing supporting decisions, stating, at para 38:
...As Professor Sullivan notes, at p. 210 of her text, “It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.” As former Chief Justice Lamer put it in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 28, “It is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage.” See also Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at para. 838.
[241] The “presumption of consistent expression” also holds across statutes, implying that statutes should not be interpreted in a way that makes them inconsistent with one another (for more on considering parallel legislation, across statutes, see endnote 243). Therefore, when two statutes dealing with the same or analogous subject matter use the same or similar words, the courts will generally conclude that the words have the same meaning. Conversely, when different words are used in otherwise similar statutes, it may be presumed that the legislature intended a different meaning or purpose (see Sullivan and Driedger on the Construction of Statutes).
[242] Like the presumption of consistent expression, the “presumption against tautology” may be rebutted by providing a possible meaning for a potentially tautologous word that would not render it superfluous or meaningless, or by submitting reasons for why, in the particular word choice, the legislature may have wished to be redundant or include superfluous words. When the court has reason to believe that the legislature deliberately included tautologous words, the presumption will be more easily rebutted. For example, the court may suggest that the legislature chose to repeat itself to guard against confusion and misapplication of the legislation. Repetition may also have been necessary to make the statute easier to understand for the layperson. See Sullivan and Driedger on the Construction of Statutes.
[243] The relevance of considering parallel legislation in other provinces and territories in attempting to discern and interpret legislative intentions and meanings is affirmed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53. In this decision, the Court cites other supporting decisions for this principle, stating at paras. 57 and 58:
[57] The respondent... urges us to consider parallel legislation in the provinces and territories and we agree that this is a useful exercise in this case. Of course, we do not suggest that consulting provincial and territorial legislation is always helpful to the task of discerning federal legislative intent. However, Professor Sullivan confirms that cross-jurisdictional comparison of statutes dealing with the same subject matter may be instructive (pp. 419-20).
[58] The Court has made use of parallel legislation as an interpretative aid in other cases. For example, in Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, Sopinka J. looked at several pieces of comparable provincial legislation to assist him in determining whether the federal legislation allowed the Public Service Staff Relations Board to decide who is an employee under its enabling legislation (pp. 631-32). Another example of this approach is found in Morguard Properties Ltd. v. City of Winnipeg, [1983] 2 S.C.R. 493, where Estey J. relied on a comparative analysis between Manitoba’s legislation, and that of the other provinces, when deciding whether Winnipeg intended to freeze property tax assessments (pp. 504-5).
The courts have shown a particularly strong desire for uniformity across Canadian human rights legislation. As a result, they have seemed to impose a burden on provincial legislatures to strongly signal, through the language used in the statute, their intention to depart from the national approach to human rights legislation. Lamer, C.J., writing for the majority of the Supreme Court of Canada in Berg v. University of British Columbia, [1993] 2 S.C.R. 353 illustrated this by stating at para. 372:
If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.
As a consequence, it may be argued in some cases, particularly where this has been explicitly signalled by the legislature, that using different words across legislation with a similar purpose shows that the legislature intended for these words to have different meanings, in accord with the “presumption against tautology.”
[244] B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403 at para. 42.
[245] Ibid.
[246] Amselem, supra note 137, at para. 39 states that when dealing with religious freedom, only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected under the Quebec or Canadian Charter.
[247] Supra note 137.
[248] Wali v. Jace Holdings Ltd. [2012], CHRR Doc. 12-0389, 2012 BCHRT 389.
[249] In this case (ibid.), Tribunal adjudicator Enid Marion noted at para.106:
The Code does not define "political belief," and the Tribunal has not exhaustively commented on its scope. However, in Croxall v. West Fraser Timber Co., 2009 BCHRT 436 [CHRR Doc. 09-2826], the Tribunal noted that:
The ground of political belief is not defined in the Code and the Tribunal has not had many occasions to consider comprehensive legal argument and to develop its definition.
In Prokopetz and Talkkari v. Burnaby Firefighters' Union and City of Burnaby, 2006 BCHRT 462 [CHRR Doc. 06-621], at para. 31 ("Prokopetz") the Tribunal summarized the few cases that raised political belief as a ground and determined two underlying principles. The Tribunal found that political belief under the Code is to be given a liberal definition and that it is not, on one hand, confined to partisan political beliefs nor, on the other, is it unlimited in its definition. (at paras. 19-20)
In finding the applicants claim based on political belief under the B.C. Code justified, the Tribunal further found at paras. 117 and 119:
In my view, the free speech of College members on matters affecting the regulation of their profession falls within the scope of political belief, given the legislative framework under which the College operates and the express regulatory mandate given the College by the government regarding pharmacy technicians. This was a new legislated initiative, that involved the public welfare, and that was being debated within the pharmacy community.
I accept that the expression of Mr. Wali's belief was in respect of a system of "social cooperation", that being the social contract between the government, the College and the public regarding the safe distribution of pharmaceutical medication.
Thrifty admits that Mr. Wali's position before the College was a factor in his termination. Since I have concluded that Mr. Wali's position falls within the scope of political belief under the Code, I find that this aspect of Mr. Wali's complaint is also justified.
[250] Labchuck (2012) draws on the work of Ruth Sullivan, Driedger on the Construction of Statutes [Butterworth Canada Ltd, 3 Ed (1994), Chapter 3: Avoiding Absurd Consequences]. She also points to court justifications for expansive interpretations of a statutory provision to avoid such absurdity. She offers the example of Campbell (G.T.) & Associates Ltd. v Hugh Carson Co.,[1979] 99 DLR (3d) 529 (Ont CA).
[252] See Sztybel (2012) and Kislowicz (2012). In her January 12, 2012 Policy Dialogue keynote address, law professor Winnifred Sullivan talked about the problem of defining religion in law to protect religious freedom, and, in the same act, thereby delimiting such freedoms (through pre-emptive definition).
[253] “While there may be an argument to be made for excluding the term ‘secular,’ one can hardly account for the exclusion of moral or ethical beliefs since religion is only one of the arbiters of morality and ethics,” McCabe et al. (2012). Benson (2012b) similarly draws attention to the logical problem created in any effort to extricate not only morals and ethics, but also politics (excluding from the definition of creed) from properly religious concerns. He argues that politics must encompass morals and ethics.
[254] Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 101 and 102.
[255] R. v. Turpin, [1989] 1 S.C.R. 1296 at paras. 1313 and 1314.
[256] Supra note 8, at para 42. Associate Chair David Wright stated, “I rely upon the French translation of ‘creed’ in the Code, croyance. This reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views”.
[257] R v. Morgentaler, [1988] 1 SCR 30 at para 179. 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.”
[258] Alberta v. Hutterian Brethren of Wilson Colony, supra note 235 at para. 90. See also Simoneau v. Tremblay, 2011 QCTDP 1 at paras. 208 and 209
[259] R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713 at para. 759. See Chiodo (2012a); Chiodo (2012b).
[260] [1994] 2 F.C. 406, 1994 CanLII 3453 (FCA).
[261] R. v. Morgentaler, [1988] 1 SCR 30. In this case, the Supreme Court struck down a provision of the Criminal Code that limited the availability of abortions, because it unjustifiably violated s. 7 of the Charter. In her concurring opinion, Wilson J stated:
[I]n a free and democratic society "freedom of conscience and religion" should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Indeed, as a matter of statutory interpretation, “conscience” and “religion” should not be treated as tautologous if capable of independent, although related, meaning.
[262] Chiodo (2012a) cites Mortillaro v. Ontario (Minister of Transportation), 2011 HRTO 310 (CanLII) at para. 61; Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. However, as both of these cases relate to congruent interpretation of discrimination analysis under the Code and s.15 of the Charter, they may have little applicability to s. 2(a) of the Charter. Labchuk cites Justice McLachlin’s decision in R. v. Zundel, [1992] 2 S.C.R. 731 which held that when legislation is capable of two equally persuasive interpretations, the court should prefer an interpretation that promotes Charter principles and values over one that does not.
[263] Vice-chair Ken Bhattacharjee in McKenzie v. Isla, 2012 HRTO 1908 (CanLII) cites the following cases as affirming this principle (at para. 33): Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII); Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 (CanLII); and Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 (CanLII).
[265] This term was used by a participant during an OHRC consultation event. See Ryder (2012b) for more on debate about the relationship between Charter versus Code discrimination analyses. See also Huang v. 1233065 Ontario, supra note 14 at para. 28 citing a number of decisions dealing with the relationship between the Code and Charter and R. v. Badesha, 2011 ONCJ 284 (CanLII). In the 2010 BC Court of Appeal decision in British Columbia (Ministry of Education) v. Moore, 2010 (CanLII) BCCA 478 at para. 51, Justice Rowles argued in a dissenting opinion (that was subsequently largely followed by the Supreme Court of Canada on appeal) that Charter jurisprudence "should appropriately inform, but not dominate, the statutory analysis.” Justice Rowles quoted Leslie Reaume in support of this point:
”...borrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory interpretation and advances the purpose and quasi-constitutional status of the enabling statute" (at 375; cited in Ryder, 2012b, p. 12).
[266] Freitag v.Penetanguishene (Town) [2013] HRTO 893.In this (2013) Human Rights of Ontario Tribunal Decision, adjudicator, Leslie Reaume, argues in this respect: “…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” (at para. 27). She further states at para. 42:
“[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.”
[267] In Freitag v.Penetanguishene, HRTO adjudicator, Leslie Reaume, further distinguishes between Code and Charter section 15 anti-discirmination legal protections, stating, at para. 41:
Even in the context of section 15 cases, where discrimination is at the core of the analysis, courts have found that there are significant differences in how the Charter and the Code are interpreted: See Ontario (Disability Support Program) v. Tranchemontagne,2010 ONCA 593.
[268] For instance, consider Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (CanLII). Writing for the unanimous Court, Stratas J.A. states, at para.19: “The equality jurisprudence under the Charter informs the content of the equality jurisprudence under human rights legislation and vice versa: see e.g., Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at paras. 172-176; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 27; Moore [v. British Columbia (Education), 2012 SCC 61 (CanLII)] at para. 30; [Quebec (Attorney General) v. A., 2013 SCC 5 (CanLII)] at paras. 319 and 328).”
The equality provisions of the Charter in section 15 are:
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.
As well, subsection 15(2) signals a broader substantive equality concern with “the amelioration of conditions of disadvantaged individuals or groups.” It says:
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.
[269] In support of its positioning of freedom of religion as the “basic principle that informs the right to equal treatment under the Code on the ground of creed” (p.5), the (1996) Policy states (in endnote #7 of the policy):
This is reflected in the Preamble of the Code which recognizes that the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace ... [and that has as its aim] the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.
[270] For instance, Labchuck (2012), in her call for expanding the definition of creed, places relative emphasis on the Code’s goal of protecting individual human dignity. Labchuck describes the spirit, intent and aim of human rights law as “to be maximally protective to human dignity”. Others at the 2012 Policy Dialogue and Legal Workshop offered a more socially situated reading of the Code, stressing the role of human rights law in progressively eliminating “social practices of exclusion.”
[271] The courts have shown a strong desire for uniformity across Canadian human rights legislation. Lamer, C.J., writing for the majority of the Supreme Court of Canada in Berg v. University of British Columbia illustrated this by stating at para. 372:
If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.
[272] See for instance Labchuck (2012), Chiodo (2012a), McCabe et al. (2012), Benson (2012b), and Szytbel (2012).
[273] Both Labchuck (2012) and Chiodo (2012b) cite Insurance Corp of British Columbia v Heerspink, [1982] 2 SCR 145 in this respect.
[274] According to Labchuck (2012), the Supreme Court approved this concept in Dickason v University of Alberta [1992] 2 SCR 1103 at para. 115.
[275] Chiodo (2012a) and Labchuck (2012) among others point to the Code’s explicit affirmation of the need to progressively interpret and advance the Code’s purposes.
[276] Labchuck (2012).
[278] Chiodo, 2012b, p.19.
[279] Charles Taylor has written extensively on the quest for meaning and authenticity in the modern era, as inspired from such diverse sources as religion, spirituality and/or secular humanism (Taylor, 1989).
[280] Labchuck (2012).
[282] Sometimes, this need to advance human rights purposes can lead the courts to seek to do so even where the existing letter of the law is limited. In support of this principle, Labchuck cites Ontario (Human Rights Commission) v Simpsons-Sears (“O’Malley”), [1985] 2 SCR 536, where the court implied a duty to accommodate, despite its then absence in the Code.
[283] Although the courts have broadly defined religion and creed to include many non-western religious beliefs and practices, there is a feeling that these must still be characterized as ”religion,” the concept of which, critics argue, was developed primarily with western faith traditions in mind (for example, see Huang, supra note 14).
[284] Kislowicz (2012) draws on the work of American legal scholar Winnifred Fallers Sullivan, in this respect, who made a similar appeal in her January 12, 2012 Policy Dialogue Keynote Speech. David Seljak (2012) similarly cautioned against against overly prescribing rules and definitions and making creed rights too specific, in ways preventing a more capacious, dynamic understanding of religion and creed: “We cannot protect what we cannot see and how we define religion will determine what we do – and do not – see as worthy of protection and promotion” (Seljak, 2012, p. 11).
[285] Kislowicz, 2012, p.31.
[286] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 69-71.
[287] Article 18 of the International Covenant on Civil and Political Rights (ICCPR) includes the following provisions:
- 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.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- 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.
- 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.
[288] See Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981 at [www2.ohchr.org/english/law/pdf/religion.pdf].
[289] Article 7 of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981, reads: “The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.”
[290] Article 28 of the International Covenant on Economic and Social Rights (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).
[291] In Human Rights Committee General Comment No. 22: The right to freedom of thought, conscience and religion, that comments on Article 18 of the International Covenant on Civil and Political Rights, the Committee affirms that
The Human Rights Committee is a body of 18 independent experts. Signatory States are required to submit reports on how rights are being implemented (usually every four years) and the committee provides comments and suggestions. Article 41 of the ICCPR allows the committee to hear complaints brought against a State party by another State party. The First Optional Protocol allows this committee to hear individual complaints against signatory States.
In a subsection dealing with ”Religious Minorities and New Religious Movements” in another UN Commission on Human Rights (2006) Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, further notes ([A/HRC/4/21], at paras. 43-47), among other things, that:
This report taks about similar challenges at the international level in grappling with religious and creed diversity and related definitions. Other points noted in this report relating to the interpretation of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981, include:
Another UN General Assembly (2009) Interim Report of the Special Rapporteur on freedom of religion and belief [A/64/159] similarly affirms that that the “contents of a religion or belief should be defined by worshippers themselves.”
[292] Supra note 8. In this (2013) HRTO decision, the HRTO relied on international protections when interpreting the ground of creed under the Ontario Code:
I also rely on the fact that international human rights law includes protections for atheism as part of freedom of religion. As the Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para. 70, "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review". Article 18(1) of the International Covenant· on Civil and Political Rights, which has been ratified by Canada, reads as follows:
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. [40]
Although the wording includes "religion or belief', Article 18 in my view has the same purposes as the protection of creed in the Code. Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L makes clear that atheistic beliefs and non-belief are protected in this fundamental international human rights treaty:
Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms "belief' and "religion" are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions (at paras. 40 and 41).
[296] See Kelly v. British Columbia (Public Safety and Solicitor General), supra note 11.
[297] Re O.P.S.E.U. and Forer (1985), supra note 12.
[298] Hutterin Brethren, supra note 160.
[299] Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460 [CanLII), Gilbert v. 2093132 Ontario Inc., 2011 HRTO 672 (CanLII).
[300] Huang, supra note 14
[301] Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.
[302] In this particular grievance arbitration decision, the labour arbitrator did not discuss why participation in the Rocky Mountain Mystery School, an organization that “teaches the ancient practice and knowledge of light and light work in the world” was a creed, instead focusing on whether the employer was required to accommodate the employee’s request for time off to attend a pilgrimage (Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, [2010] C.L.A.D. No. 298 [QL]). In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged.
[303] Supra note 8.
[304] Hendrickson Spring v. United Steelworkers of America, Local 8773 (Kaiser Grievances), [2005] O.L.A.A. No. 382, 142 L.A.C. (4th) 159.
[305] Rand v. Sealy Eastern Ltd. (1982), 3 C.H.R.R. D/938 (Ont. Bd. Inquiry) at D/942. This was one of the earliest Ontario decisions dealing with creed. Professor Cumming, hearing the complaint of a Sikh man who was denied employment because of his beard and turban, described creed as derived from the Latin “credo” meaning “I believe.” He also looked to the Oxford and Webster Dictionary definitions which were:
Oxford: Creed... “An accepted or professed system of religious belief: the faith of a community or an individual, especially as expressed or capable of expression in a definite formula.”
Webster’s: Creed …Any formula of confession of religious faith; a system of religious belief, especially as expressed or expressible in a definite statement; sometimes, a summary of principles or set of opinions professed or adhered to in science or politics, or the like; as his hopeful creed.”
[306] [1997] CanLII 12445 (ON SC), upheld 1999 CanLII 3744 (ONC CA).
[307] Ibid. at para 39. The Ontario Humanist Society, in their OHRC paper submission (McCabe et al., 2012), cite other similar dictionary definitions and etymologies deriving “creed” more broadly, from the Latin “credo,” meaning “I believe,” without any implication or requisite of a religious basis for such belief.
[308] Ibid. at para 40.
[309] 1999 Jazairi Court of Appeal decision (supra note 306) at para. 28. In a recent decision, the Ontario Superior Court of Justice refused a defendant’s motion to strike a human rights claim in a civil action. The plaintiff alleged that he was dismissed from his employment because he expressed views about the armed conflict in Syria which were inextricably linked to his identity as a Syrian Canadian and a Muslim. The defendant argued that the plaintiff’s claim was in essence one of discrimination based on ”political opinion” and the Code does not cover this. The Superior Court cited the Court of Appeal in Jazairi and found that the Court of Appeal expressly left open the possibility that some other system of political belief could constitute a creed. The Superior Court felt that on the allegations before it, it could not conclude (on a motion to strike) that the views of the plaintiff could not amount to a creed; see Al-Dandachi, supra note 9.
[310] For example, in Sauve v. Ontario (Training, Colleges and Universities), 2009 HRTO 1415 (CanLII), the HRTO found it did not have to decide whether the Metaphysical Church and tarot card reading was a creed: “I find that even if tarot could legally be included in the Code’s definition of creed, the decision to deny the applicant the SEB benefits was not based on tarot card reading; therefore, it is unnecessary for me to make a determination as to whether tarot in the context of this case constitutes a creed under the relevant case law….”(at para. 39). See also Hayes v. Vancouver Police Board and another (No.2), 2010 BCHRT 324 (CanLII) regarding Paganism. In other cases, decision-makers have accepted, with little discussion or analysis, that a belief system is a creed and have instead focused on what practices are protected. For example, in a grievance arbitration decision, the labour Arbitrator did not discuss why participation in the Rocky Mountain Mystery School, an organization that “teaches the ancient practice and knowledge of light and light work in the world” was a creed, instead focusing on whether the employer was required to accommodate the employee’s request for time off to attend a pilgrimage (Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, [2010] C.L.A.D. No. 298 [QL]). In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged.
[311] Supra note 137 at para. 69.
[312] Ibid.
[313] Chiodo, 2012b, p. 19 argues:
With belief becoming more individualized and less associational, the distinction between religious and non-religious convictions is becoming increasingly hard to justify. Indeed, the distinction appears to many observers to be arbitrary, and implies that familiar or favoured creeds are “real” beliefs, while different or new creeds are not beliefs or are only pseudo-beliefs.
[314] Moon, 2012a.
Many of the arguments heard to date by the OHRC in support of maintaining the current definition of creed as “religion” revolve around anxieties about potentially “watering down” the purpose and focus of human rights legislation. Proponents of this view reminded us of the importance of returning to the original purpose of human rights protections when considering the question of definition. For instance, people argued that the main purpose of human rights legislation is to combat discrimination that is based on, and reproduces, social inequality, social exclusion and historical disadvantage faced by vulnerable, marginalized groups in society. One participant at the Legal Workshop commented:
I don’t want to water this down so that people in power who enjoy privilege use this to protect the power they already have. We want to be open, but not to the extent that we take the prohibited grounds to apply to everyone and anyone...If you water down the policy [definition], you put yourself on a slippery slope of having to deal with issues for which Human Rights Codes were not intended. Then, you will no longer have a vehicle to protect and promote the rights of marginalized, vulnerable identifiable groups.[315]
Proponents of this view tended to emphasize the group basis of social disadvantage and stereotyping faced by existing Code-protected groups, as a key condition of their protection under the Code. They argued that the move in recent human rights jurisprudence away from abstract formal analyses of prima facie discrimination –centering on human dignity or comparator group analyses – towards more contextual and purposive understandings of discrimination, mindful of social and historical relations of power and inequality, provides some support for this view.[316]
However, one could argue that not all religious communities currently covered by the Code ground of creed are socially disadvantaged. In fact, as discussed earlier in the background section, some religious communities may have structural advantages and privileges in Ontario society, at least in certain respects. In any case, if the OHRC expands its policy definition of creed, cases brought before the courts and HRTO would still need to meet the test of prima facie discrimination, which may consider past or present social disadvantage and sensitivity to contexts of social inequality.[317]
Some legal scholars emphasize a distinction between the goal of equality rights legislation (for example, protecting against discrimination based on creed under the Code), and the goal of liberty rights legislation (for example, protecting freedom of religion under section 2(a) of the Charter).[318] The former, they argue, addresses social and historic disadvantage and inequality, necessarily assessing broader social dynamics of power and inequity in its effort to prohibit and remedy discrimination and unequal treatment.[319] The latter tends to put more emphasis on the right of individuals to be free from state coercion or interference in matters of religion and conscience,[320] regardless of whether such interference or coercion is based on social inequality or group disadvantage or stereotyping.
While the courts have recognized an equality dimension to freedom of religion under the Charter, [321] some legal scholars note the disproportionate weight accorded to the liberty dimension in s. 2(a) jurisprudence.[322] Taking issue with the tendency of the higher courts to conflate and confuse equality rights relating to creed and religion under the Code and s.15 of the Charter with religious freedom rights under s.2(a) of the Charter, Ryder, among others, emphasized the importance of distinguishing between the two overlapping but distinct aims of these laws, advising the OHRC to keep the unique purposes of human rights legislation in view when assessing policy options for defining creed.[323]
Others argue that religion is distinct from other kinds of belief systems, and that to fail to distinguish between, for instance, political and ethical beliefs, conscience and religion, is a categorical error and potentially a legal one, since different kinds of belief warrant different kinds of legal protections (e.g. freedom of expression versus freedom of religion versus freedom of conscience), in accord with their unique status and functioning in the lives of individuals. One participant at the Legal Workshop, warned of the danger of trying to “fit square pegs into round holes”:
A few distinctions may help us. There is a long tradition of protecting religions as collectives, as institutional forces in our society. The new [square] pegs are these new forms of identity – there is an individual autonomy that is different from the collective aspect of religions. That is why they should be seen as differently.
This collective dimension of religion and creed has been discussed in legal decisions.[324] For instance, in 407 ETR Concession Company v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, a labour Arbitrator states: “A creed implies some level of association between those of like mind. It contemplates a set of shared beliefs. It implies some professed system of faith.”[325] In his dissenting judgement in Hutterian Brethren,[326] Justice LeBel also emphasized the importance of recognizing the communal and collective aspect of religion:
[Freedom of religion] incorporates a right to establish and maintain a community of faith that shares a common understanding… Religion is about religious beliefs, but also about religious relationships… [This case] raises issues… about the maintenance of communities of faith”.[327]
Chief Justice McLachlin, in her majority decision, and Justice Rosalie Abella also accepted that religious freedom has both individual and collective aspects. However, Chief Justice McLachlin rejected the view that that the community impact transformed the essential claim of the Colony – that of the individual claimants for photo‑free licences – into an assertion of a group right.
The 1996 Policy similarly recognizes this group aspect of religion in speaking about the need to assess and accommodate the “needs of the religious group to which an individual belongs” (see section V subsection 3.2 for further discussion on “the needs of the group”).[328] This is consistent with s. 11 of the Code, dealing with constructive discrimination, which also refers to the needs of the group of which the individual is a member.
Many legal scholars have taken issue with the erasure of this communal dimension of religion in the Charter s. 2(a) freedom of religion jurisprudence, particularly since Amselem.[329] For example, Moon observes:
The particular significance of religious practice to the individual must rest in part on its collective character – that a practice such as residing in a succah connects the individual to a community of believers and is part of a shared system of norms...[R]eligious accommodation may be motivated at least in part by a desire to avoid the marginalization of identity groups [330]
Others pointed to other ways that religion (as opposed to other kinds of beliefs) is unique and distinct in ways meriting special legal consideration and protection of its own particular kind. For instance, some people highlighted the depth and comprehensiveness of religious commitment, and the absolute and transcendent nature of its truth claims, which by definition can pose unique challenges to the authority of the liberal state in ways that are not similar to other kinds of (less encompassing or absolute) beliefs.[331]
We also heard from several people that matters of “religion” should be distinguished from matters of ”conscience,” in part for the reasons discussed earlier. Warning about the dangers of conflating these interconnected but distinct phenomena under a single category of “creed,” one participant argued:
We know from the history of religion that there is an inherent group component – identifying with religion means identifying with a group and set of internal permissions that one negotiates...I see conscience as an individual element of religion. I may have a dispute with members of a religious group, and rely on my conscience. Conscience can be the antithesis to a religious belief. I’m increasingly persuaded that the new religions should be under conscience rather than religion.
The same participant went on to explain how two different types of legal rights protections – one, a negative right (freedom from coercion), the other a positive right (implying a duty to accommodate) – may not necessarily apply equally to both kinds of beliefs. He observed:
We have less trouble saying people shouldn’t be coerced with conscience, but it is more complicated with accommodation. Ethical veganism is a good case – it is more about conscience than membership in community, but for accommodation...Should conscience be accommodated the same way as religion? This is an important question, and a hard question.
Some held that the existing 1996 OHRC Policy already extended sufficient (albeit negative, i.e. “freedom from”) rights to persons with non-religious creeds. For instance, this policy states:
It is the OHRC's position that every person has the 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. This principle extends to situations where the person who is the target of such behaviour has no religious beliefs whatsoever, including atheists and agnostics who may, in these circumstances, benefit from the protection set out in the Code.[332]
This brings within the scope of human rights protection situations where individuals are harassed, or face other discriminatory treatment for not having a particular creed or religious belief (e.g. for being non-religious, atheist, agnostic or secular humanist), and/or where a person of religious faith imposes their faith in some way on a person who does not share that faith, regardless of what their beliefs are.[333] It may not, however, impose on organizations any positive duty to accommodate persons with deeply held non-religious beliefs. Some argue that this restriction of the duty to accommodate is justifiable, since it flows, in large part, from society’s recognition of an unequal (social, institutional, structural) playing field for “minority group” members (thus ruling out accommodations for people not facing such constructive forms of disadvantage). Of course, non-religious creed group members may also face group disadvantage (as explored above).
Noting the distinction between religion and conscience in section 2(a) Charter case law (see section 2.1.4 above), some argued that rather than expanding the scope of creed through policy development, the OHRC should advocate for the Legislature to add “conscience” to the Code, if indeed it believes a broader range of individual beliefs should be included within the scope of its protections. This would enable two separate and distinct streams of jurisprudence (the right to be free from discrimination based on creed and the right to be free from discrimination based on conscience) to be maintained. To not do this, some argued, would be tantamount to mixing apples and oranges under a single confused (“creed”) category, which could lead to decision makers simply overlooking the OHRC’s policy, due to its potential to run against the grain of judicial interpretation.
The OHRC also often heard “floodgate”-type arguments – if the policy widens the definition of creed, organizations governed by the Code will be flooded and overcome with demands to accommodate all manner of sincerely held beliefs, compromising their ability to function and fulfill their essential purpose.[334] Concerns about potentially having to deal with a flood of creed claims were at times connected to organizational anxieties around having only a “subjective-sincerity” test to hold back such claims.
Others drew attention to the much broader jurisdiction of the Code, as compared to the Charter, and the potential significant impact that bringing matters of individual conscience (currently governed by the Charter which applies only to government) under the Code could have for Ontario organizations. One policy dialogue participant concluded: “Creed analysis under the Code should not be unthinkingly borrowing from the Charter when the impact of the Code is so much greater with employers and citizens than the Charter.”[335]
Some would nevertheless challenge the idea that opening up the definition of creed beyond religion in an OHRC policy will necessarily lead to an avalanche of frivolous claims. There is already ample scope for a multitude of (in some cases frivolous and vexatious) claims based on religion in current law, due to the broad and subjective definition of religion in Amselem.[336] As well, the current policy definition of creed has not prevented claims from being advanced at the HRTO under the ground of creed by people who would not likely fall within the current policy definition.
Furthermore, while OHRC policies are considered persuasive and often given great weight by the HRTO and courts, a change to the policy would not necessarily bind decision makers in individual cases. In any case, from a human rights perspective, withholding current human rights and accommodations based on prospective future challenges (e.g. anticipation of future undue hardship) is not a legally defensible position. Undue hardship analyses in accommodation cases, for instance, must proceed based on current (empirically demonstrable) organizational realities and constraints.
Principles of statutory interpretation affirm that the intention of the legislature is a factor in interpreting legislation,[337] as is “[t]he legislative evolution and history of a provision”.[338] The OHRC heard anecdotal evidence based on an oral interview with a leading human rights activist around at the time of the Code’s creation, that only religious creeds were contemplated by Parliament when it introduced creed as a ground of human rights protection in 1962. Others have suggested that the language of “creed” evolved out of the historically dominant Christian lexicon, and assumed religious meaning.[339]
Despite this, the OHRC need not be bound strictly by 1962 interpretations. The Code has since been updated many times since its 1962 enactment, most recently in 2008, and has not been amended to replace “creed” with “religion” or “religious creed”. As well, as noted earlier, human rights legislation has quasi-constitutional status. This means that human rights legislation is given a liberal and purposive interpretation, so it may better fulfill its objectives, with protected rights receiving a broad interpretation. However, as also earlier noted (see supra note 337), any such broad “interpretation of the text of the statute” should also be one “which respects the words chosen by Parliament.”[340]
Further, in responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation may be adapted to changing social conditions and also to evolving conceptions of human rights. According to Sullivan and Driedger:
Courts are bound to respect the meaning of words used by the legislature, but given the plastic character of language, especially the general language typically found in human rights codes, this constraint does not prevent the courts from taking a flexible and adaptive approach.
In practice, the Supreme Court of Canada has consistently taken a flexible and adaptive approach to the resolution of issues under human rights legislation. This is evident in the willingness of the court to adopt and develop novel concepts within the framework of these Acts. Although the new concepts may be loosely tied to particular provisions of the Act, the main justification for introducing them is that they accord with and tend to promote the general policies and goals of the Act.[341]
This liberal and purposive approach to interpreting the law is in evidence in the OHRC’s reading of gender identity, pregnancy and breastfeeding into the Code ground of sex, even though the legislation was initially silent on such inter-related grounds and concepts.
Looking at the history of the selection of “creed” as a prohibited ground of discrimination has been of limited assistance, as historical legal and archival research by the OHRC to date has been unable to definitively determine any precise operative definition of creed at the time of the term’s first appearance in the original Code in 1962. When the Human Rights Code was introduced in a bill on December 14, 1961 by the Hon W.K. Warrender, he emphasized that there were no new principles in the bill. The bill, he suggested, simply incorporated into the Human Rights Code various anti-discrimination Acts which the Ontario Legislature had already approved in the past.[342]
The OHRC’s own research into the legislative history of anti-discrimination statutes predating but later shaping the Human Rights Code revealed that in the initial draft of the first general anti-discrimination bill introduced to the Ontario Legislature on March 19, 1943, both “creed” and “religion” were listed alongside “race” as prohibited grounds of discrimination.[343] The bill, however, did not pass second reading on March 23, 1943.[344] When another anti-discrimination bill more narrowly prohibiting discriminatory publications and display (leading to the Racial Discrimination Act) was introduced a year later on March 3, 1944, it passed all three readings.[345] The final version of the Racial Discrimination Act given royal assent March 14th, 1944 prohibited discriminatory publications and displays “for any purpose because of the race or creed of such person or class of persons.” Notably absent in the final draft of this key Act predating the Code was “religion” as an independent ground distinct from “creed.” While it is clear that creed included religion in the Racial Discrimination Act, the reason for moving from religion and creed in the initial draft bill to just creed in the Racial Discrimination Act is not discussed in the archival records researched by the OHRC.[346]
[315] Several participants at the March 2012 OHRC Legal Workshop similarly argued that human rights legislation, as it evolved in Canada, was not intended to protect all manner of individual belief, but rather to advance substantive equality and remedy rights violations that had a group basis to them. They said that persons with grievances extending beyond such purposes can and should appeal to other legal and policy instruments for redress (e.g. anti-bullying legislation, freedom of conscience under the Charter etc.).
[316] In Quebec (Attorney General) v. A, 2013 SCC 5 [“Quebec”], the Supreme Court of Canada (SCC) noted that the purpose of the s. 15 equality provision and anti-discrimination law in general is to “eliminate the exclusionary barriers faced by individuals in the enumerated or analogous groups in gaining meaningful access to what is generally available” (Quebec, at para. 319 citing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R). Writing for the unanimous Court in a recent Federal Court of Appeal decision, Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (CanLII), Stratas J.A. affirmed the importance of going beyond formal comparator group analyses in this case and “taking ‘full account of social, political, economic and historical factors concerning the group’” (para. 22, citing Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at para. 39). The SCC has nevertheless made it clear in Quebec that showing stigma, prejudice, stereotyping or perpeuating historical disadvantage are not freestanding requirements that must be proven to establish discrimination. Similarly, in B. v. Ontario (Human Rights Commission), supra note 244, the Supreme Court found that the claimant did not have to identify himself as a member of a historically disadvantaged group to claim protection from discrimination based on family status (at para. 47). The HRTO confirmed this in Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 (CanLII) [Hendershott].
HRTO decisions, nevertheless, appear to leave open the possibility that in some cases, it may be necessary to further examine to what extent a claim engages the purposes of anti-discrimination law and the principles of substantive equality. In those generally rare cases where the identity of the claimant and/or the subject matter of the claim do not appear to be consistent with the purpose of statutory human rights legislation, it may be useful to consider issues such as prejudice and stereotyping, which may presume a group component. This may help clarify if the allegations “truly create a disadvantage” and raise concerns for substantive equality (Hendershott, ibid. at paras. 45, 49-51 and 55. Tranchemontagne,[2006] SCC 14 at para. 104 cited in McCalla v. Home Depot of Canada, 2012 HRTO 877 [CanLII]). A good example of a case where there appeared to be no obvious connection between the ground of discrimination and the types of substantive discrimination the Code is meant to prevent is Giggey v. York District School Board, 2009 HRTO 2236 (CanLII). The applicant argued that a school board’s refusal to allow him to register his son for kindergarten in the 2009-2010 school year, because his birth certificate showed his date of birth as January 1, 2006, was discriminatory based on the Code ground of “place of origin” because he was born in a different time zone. Had he been born in Ontario, his birth date would have been registered as December 31, 2005 (thus making him eligible to enter kindergarten in 2009-2010). In its decision dismissing the claim, the HRTO stated (at para. 11): “…there must be a connection between the “place” impacted and the purposes of the prohibition. In this case I find there is none. Whether a particular time zone is earlier or later than another results from the rotation of the earth, and choices of human society about time zone boundaries and the placement of the international date line.It in no way engages considerations of stereotyping, social or historical disadvantage, or presumed characteristics.”
[317] In a significant recent decision, Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court of Canada considered the test for discrimination under the British Columbia Human Rights Code. The Court applied the traditional, long-standing test for prima facie discrimination from O’Malley, supra note 282 at para 28. To demonstrate prima facie discrimination under the Code, a claimant must show that:
The Ontario Court of Appeal adopted a very similar version of the test in Shaw v. Phipps, 2012 ONCA 155 at para. 14.
In the context of the Charter’s anti-discrimination provision (s. 15), Abella J., writing for the majority of the Court on this point in Quebec (supra note 316), reaffirmed the Court’s commitment to the test for discrimination set out in Andrews v. Law Society of British Columbia, [1989] 1 S.CR. 143, which says the claimant’s burden under s. 15 of the Charter is to show that:
The court said that disadvantage is caused by a distinction based on a prohibited ground that imposes burdens, obligations or disadvantages on an individual or group not imposed upon others, or that withholds or limits access to opportunities, benefits and advantages available to other members of society.
Given the Supreme Court has very recently articulated two tests for discrimination: one in the Charter context (“Quebec”), and the other in a claim of discrimination under a human rights statute (“Moore”), a question remains about what extent the two tests coalesce and what the test is for discrimination under the Ontario Human Rights Code. In practice, the HRTO’s application of the prima facie test since Tranchemontagne has been somewhat malleable, varying depending on the circumstances of the case. In some decisions, the HRTO has said that an applicant must show that the differential treatment creates disadvantage (see A.N. v. Hamilton-Wentworth District School Board, 2013 HRTO 67 (CanLII) at para. 112 and Addai v. Toronto (City), 2012 HRTO 2252 (CanLII)). The HRTO has also said that in most statutory human rights cases, substantive discrimination can be inferred where there is adverse treatment based on a prohibited ground and where the subject-matter of the claim is connected to the underlying purpose of the Code.
Nevertheless, while a majority of decisions based on the Code have confirmed that the test or threshold for discrimination remains the same for all the grounds, the contextual factors considered can vary depending on the ground. For example, in age cases, appears to have been a heavier emphasis on showing indicators (disadvantage, prejudice, stereotyping) of substantive discrimination and a greater unwillingness to simply infer it from the existence of an age-based distinction. In terms of creed, some decision-makers have noted that not every impact on creed violates rights (e.g. not being able to take part in social or cultural activities related to creed, not being able to wear a particular style of hijab). In the case of social or cultural activities, see Eldary v. Songbirds Montessori School Inc., 2011 HRTO 1026 (CanLII); Hendrickson Spring v. United Steelworkers of America, Local 8773, supra note 304; Assal v. Halifax Condominium Corp. No. 4 (2007), 60 C.H.R.R. D/101 (N.S. Bd. Inq.). In the hijab case, see Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 (CanLII)). It is possible that if the OHRC decides to broaden its policy definition of creed, the courts and Tribunal could place a heavier emphasis on indicators of substantive discrimination.
[318] For instance, legal scholar Bruce Ryder emphasized this distinction in his presentation (“The relationship between religious equality and religious freedom: convergence and divergence”) at the (2012a) Legal Workshop.
[319] Some human rights statutes, such as British Columbia’s, are more explicit in their sensitivity to social patterns of inequality. The stated purposes of the British Columbia Human Rights Code include:
[320] The Supreme Court first addressed the scope of section 2(a) in its landmark decision in R v Big M Drug Mart Ltd, supra note 181. The Court adopted a broad, contextual approach to s. 2(a), emphasizing individual liberty and conscience, taking into account the values underlying both the provision and the Charter generally. As Dickson CJ described the purpose of freedom of religion and freedom of conscience (at para. 123):
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.
[321] Section 2(a) jurisprudence reveals internal divisions about the proportionate weight accorded to the liberty and equality dimensions of this fundamental freedom. The first major decision under s. 2(a) of the Charter, Big M Drug Mart, supra note 181, recognized both liberty and equality goals and aims under freedom of religion.
[322] Many OHRC paper contributors observe the courts’ one-sided focus on issues of individual liberty and belief in section 2(a) decisions since Big M (see Berger, 2012; Bhabha, 2012; Moon, 2012a; Ryder, 2012a). Bhabha (2012) for instance 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 Berger, 2002 and Berger’s earlier [2012] analysis of the liberal cultural biases in s. 2(a) jurisprudence). According to Berger (2012):
The overwhelming focus on religious freedom rather than religious equality is an artefact of the law’s way of seeing religion. For the law, religion seems to take its core value as an expression of the autonomous will of the individual agent. Any dignity or privilege accorded religion flows from the fundamental place that it holds in the individual’s set of choices around living a good life.
[324] This view of religion as having both a collective and an objective dimension is expressed in Justice Bastarache’s dissenting judgement in Amselem (supra note 137). Maintaining that “a religion is a system of beliefs and practices based on certain religious precepts” (para. 135), Justice Bastarache inferred that (1) such precepts are therefore “objectively identifiable, making the limits of religious freedom protections more predictable;” and (2) “by connecting practices to these religious precepts, an individual makes it known that he or she shares a number of precepts with other followers of the religion.” In other words, sharing one’s beliefs and practices with a community is, for Justice Bastarache, an essential element of religion (cited in Kislowicz, 2012).
[325] 2007 CanLII 1857 (ON LA) at para 120. Note, however, that the Arbitrator was not commenting on what constitutes a creed. Rather he was considering whether an employer must accommodate an individual religious conviction that is not required by an individual’s creed. The Arbitrator made the statement while commenting on why he prefers the approach of the minority in Amselem (supra note 137) in the labour relations context. As the Arbitrator was bound by the majority decision in Amselem, the comments are obiter.
[326] Supra note 160.
[328] At p.7.
[329] Supra note 158.
[330] Moon, 2012a.
[331] Berger (2002) argues:
From the perspective of the adherent, religion cannot be left in the home or on the steps of Parliament. The religious conscience ascribes to life a divine dimension that infuses all aspects of being. The authority of the divine extends to all decisions, actions, times, and places in the life of the devout. Unlike the powers of a liberal state, the religious conscience is profoundly ajurisdictional (p. #).
[332] At p.5.
[333] In Freitag v.Penetanguishene (Town) [2013] HRTO 893, Human Rights of Ontario Tribunal adjudicator, Leslie Reaume, for instance argued in her decision in favour of the applicant: “…The applicant does not have to declare a specific creed or belief system in order to be protected from the imposition of the religious beliefs and observances of others in certain contexts…” (at para. 22).
[334] Bemoaning the growth of “cults and fringe organizations” using “the borrowed legitimacy of the language and terminology of faith and belief to further narrow, illegitimate and, perhaps, even illegal ends” (Landau, 2012, p. 37), Richard Landau, in his (2012) Policy Dialogue paper, said:
If a Canadian founds a religious belief system in 2011 and claims he and his adherents demand the right to suspend work every Thursday, is that a legitimate expression of belief and is the society compelled to accommodate it?
As a broadcasting executive and media producer with experience vetting appropriate religious content for Canadian television, Landau emphasized the practical importance for organizations to have clear guidelines and definitions around creeds and religions meriting societal recognition, accommodation, and, in his particular field, airplay (see Landau, 2012 for his elaboration of criteria).
[335] This is a result of the Code’s broader jurisdiction in Ontario, which covers government actors and actions (as the Charter) and also non-governmental and private sector actors, including all provincially regulated employers, service providers, housing providers, associations, etc.
[336] Supra note 158. Frivolous and vexatious claims, from this perspective, could just as easily be couched under terms of religion as secular ethical or moral beliefs. They can also be filed regardless of what policy the OHRC adopts.
[337] This principle is affirmed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53. In this case, the Supreme Court considers principles of statutory interpretation, and emphasizes the need for a “careful examination of the text, context and purpose of the provisions” (at para 32). The Court goes on to state, at para 33:
The question is one of statutory interpretation and the object is to seek the intent of Parliament by reading the words of the provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). In approaching this task in relation to human rights legislation, one must be mindful that it expresses fundamental values and pursues fundamental goals. It must therefore be interpreted liberally and purposively so that the rights enunciated are given their full recognition and effect: see, e.g., R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 497-500. However, what is required is nonetheless an interpretation of the text of the statute which respects the words chosen by Parliament.
[338] Ibid., at para. 43. The Supreme Court elaborates, in this regard:
The legislative evolution and history of a provision may often be important parts of the context to be examined as part of the modern approach to statutory interpretation: Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70, [2005] 3 S.C.R. 425, at para. 28, per Binnie J.; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 528, per L’Heureux-Dubé J.; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, at paras. 41-53, per Abella J. Legislative evolution consists of the provision’s initial formulation and all subsequent formulations. Legislative history includes material relating to the conception, preparation and passage of the enactment: see Sullivan, at pp. 587-93; P.‑A. Côté, with the collaboration of S. Beaulac and M. Devinat, Interprétation des lois (4th ed. 2009), at pp. 496 and 501‑8 (at para. 43).
[339] People taking this view, from a more historical reading, note how Christian denominations have been differentiated from one another based on their “creeds”; creedal beliefs being central in Christianity to community and faith formation. Much, if not most, historical discrimination and prejudice based on creed in Canada occurred between members of differing Christian creeds.[this last sentence seems inconsistent with the earlier sections talking about treatment of Jews, Aboriginal persons etc.]
[340] Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53 at para. 33.
[341] Sullivan 2002 at p. 377. See p. 374-378 for a discussion of presumed legislative intent when interpreting human rights statutes.
[342] In addition to the 1944 Racial Discrimination Act, the following legislation was mentioned by Hon. Warrender when he introduced the Human Rights Code in 1961:
[343] The Hansard (Ontario parliamentary debates) dated March 10, 1943 described the bill introduced by John Glass as a bill to “prevent discrimination against any person because of race, creed or religion.” One clause states that “No person shall be denied the accommodation or facilities of any hotel, restaurant, theatre or other public place because of his race, creed or religion.” Another provision says “No person shall publish or display or cause to be published or displayed, any statement, symbol, emblem or other representation creating or tending to create hatred, ridicule or contempt of or for any person or class of persons because of the color, race, creed or religion of such person or class of persons.”
[344] The Hansard dated March 23, 1943 reported that “Mr. Glass was the only member in the House to raise his voice in favor of the bill.” One reason for the defeat mentioned in the Hansard is that the bill would not “promote unity” and putting the bill through “would be resorting to a policy of force contrary to democratic principles.”
[345] The passing of this bill nevertheless encountered strong opposition from advocates of free speech. After it was introduced as Bill 46 on March 3, 1944 it was amended on March 13 to “protect liberties.” A section was added, which read, “This act shall not be deemed to interfere with the free expression of opinions upon any subject by speech or in writing and shall not confer any protection to or benefit upon enemy aliens.”
[346]In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53, the Supreme Court of Canada affirmed in its decision the relevance of considering the history of legislation in its interpretation, including excluded proposed provisions. The Court for instance states at para. 44:
We think there is no reason to exclude proposed, but unenacted, provisions to the extent they may shed light on the purpose of the legislation. While great care must be taken in deciding how much, if any, weight to give to these sorts of material, it may provide helpful information about the background and purpose of the legislation, and in some cases, may give direct evidence of legislative intent: Sullivan, at p. 609; Côté, at p. 507; Doré v. Verdun (City), [1997] 2 S.C.R. 862, at para. 37. This Court, in M. v. H., [1999] 2 S.C.R. 3, has held that failed legislative amendments can constitute evidence of Parliamentary purpose: paras. 348-49, per Bastarache J.
Applying the statutory principle of interpretation against tautology to the proposed but excluded first draft general anti-discrimination bill could suggest that “creed” and “religion” were intended to have different meanings, since they co-existed as terms in the same proposed bill. However, this does not shed light on how such terms may have been differently interpreted. Nor does it exclude the possibility of both terms having a religious mooring.
Whatever policy definition is eventually adopted, leaving the definition of creed completely open-ended, without any threshold criteria, could impose too onerous a burden on Ontario organizations to determine what constitutes a creed meriting protection under the Code. It would also fail to recognize the few limits and guidelines that have been set out in existing case law. Even those, such as the Ontario Humanist Society, arguing for an expanded definition of creed acknowledged that such protections should extend, not just to any belief or opinion, but to “a substantial belief system akin to the beliefs or tenets of a religion,” which, “influences the way you live.”[347]
The OHRC’s (2012) Creed case law review notes that, while creed is defined subjectively, there are also necessary objective elements to a creed claim (see Section V 3.3 for more on these elements). For example, accommodation providers may be within their right to seek evidence of the existence of a particular and cohesive system of belief, and its sincere observance. For newer or less understood creeds, this may be shown by using expert evidence (see for example Huang v. 1233065 Ontario[348] and Re O.P.S.E.U. and Forer[349]). The decisions in Jazairi[350] and, in the context of section 2(a) conscience rights, Roach [351] also exclude isolated political opinions from creed and conscience protections. These decisions, however, do not preclude the possibility of political beliefs being connected to a broader and deeper cohesive moral or ethical belief system that does warrant legal protection, as contemplated by the Court in Jazairi.
Some argue that when thinking about the nature and scope of non-religious beliefs potentially meriting protection under an expanded creed category in the Code, the OHRC and courts should look to the threshold and framework of analysis already elaborated by the courts in the context of the section 2(a) right to freedom of religion.[352] Potential criteria include that the conscientiously-held belief (irrespective of whether it is connected to the religious or divine):
While such threshold criteria for what could constitute a creed under the Code would “filter out a considerable number of conscientious objector claims,” Chiodo argues, “this is as it should be: religion is protected because it presents an alternative authority to that of the state, commands an individual’s utmost loyalty, and pervades every aspect of his or her life.”[358] She argues that for claims of individual conscience and belief, or non-religious belief more generally, to merit the same protection as religion, they should meet the same requirements.
Political perspectives that are connected to more comprehensive moral or ethical worldviews, from the above expanded conditional perspective, could potentially constitute a creed, according to this analytical framework. Just how one would distinguish a political belief rooted in a broader belief system, however, poses challenges of its own. Principles of statutory interpretation – the presumption against tautology and of consistency – may pose another potential barrier to including political beliefs within the ambit of the meaning of creed under the Code (as discussed in section IV 2.1.1 above).
The inclusion of “beliefs” of a non-religious nature, albeit with conditions, in British human rights law may be instructive for how the OHRC and courts might consider distinguishing beliefs meriting human rights protection. UK equality legislation, recently consolidated under the the Equality Act of 2010, explicitly prohibits discrimination based either on religious belief or on philosophical belief. For example, both veganism (in Hashman v. Milton Park)[359] and science-based belief systems (in Grainger Plc v Nicholson)[360] have been ruled to warrant protection under UK equal treatment legislation. Many belief systems have also been accepted under Article 9 of the European Convention on Human Rights (ECHR) [361] including pacifism, veganism, Scientology, the Moon sect, the Divine Light centrum, Druidism and Krishna consciousness.
Grainger Plc v Nicholson[362] is perhaps the most formative UK case offering criteria to assess beliefs meriting protection.[363] Nicholson, the plaintiff in this case, argued that his belief system on climate change was a philosophical and science-based one in line with the (2003) UK Employment Equality regulations pertaining to religion or belief, as well as legislation under the European Convention on Human Rights (article 9, protocol 1, article 2). In his ruling, Judge Burton held that a conviction in the existence of climate change was a protected belief under the legislation and that a belief could also be protected if it was founded on science, provided the belief system relates to a “substantial aspect of human life and behaviour,” and attains “a certain level of cogency, seriousness, cohesion and importance.”[364]
Grainger is a noteworthy case, because it established the Grainger test, which has since functioned as the main standard for assessing claimants’ rights to protection on the ground of belief. The Grainger test – as elaborated in a 2011 case (Hashman v Milton Park)[365] involving an ethical-vegan, anti-foxhunting activist who successfully claimed discriminatory termination of employment as a gardener as a consequence of his views – states that a philosophical belief system (distinct from a religious one) warrants protection as long as it fulfills certain conditions. These include that the philosophical belief system in question:
The court in Hashman also referenced the case of Williamson,[368] where Lord Nichols specified that “the belief must also be coherent in the sense of being intelligible and capable of being understood”.[369] As long as these conditions are fulfilled, the courts also affirm in Granger and Hashman[370] that the belief system may be:
One could argue that since philosophical beliefs and religion do not share the same exact test, under the prohibited ground of religion or belief in the UK Equality Protection Act of 2010, one may prudently avoid conflating unique phenomena (for instance by those recommending distinguishing conscientiously held individual beliefs from religion), while at the same time holding out equal protection for both closely related grounds. The question here is whether two distinct tests (one for religion, one for conscientiously held individual beliefs) should be posited under a single expanded Code ground of creed, in this light, or a single one as suggested above by Chiodo.[371]
Some, in the UK context, have criticized the distinction in law between religious belief and philosophical belief as arbitrary and prone to potential abuse. They argue that this encourages a two-tiered approach where philosophical beliefs may in effect be more strictly scrutinized as ”mere opinions” compared to religious beliefs.[372] In its elaboration of the Grainger test in Hashman, the Court, nevertheless, clearly affirms that “these threshold requirements should not be set at a level which will deprive minority beliefs of the protection they are intended to have under the convention”.[373]
[347] McCabe et al. (2012, p. 33) quote the Cambridge dictionary definition of creed.
[348] In this case, the HRTO 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. In her testimony, the complainant referred to Falun Gong as a “practice” as opposed to 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 consists of a system of beliefs, observances and worship and falls within the notion of “creed” under the Code (see Huang, supra note 14).
[349] In Re O.P.S.E.U. and Forer (supra note 12), a 1987 labour arbitration decision, after reviewing evidence, including from experts, regarding its history, practice and beliefs, Wicca was found to fall within the term “religion” as used in the collective agreement. The panel adopted “a broad, liberal and essentially subjective” approach to religious observance set out in an earlier Ontario Court of Appeal decision (Re O.P.S.E.U. and Forer, (1985), 52 O.R. (2d) 705 [C.A ]). In that case, the Court of Appeal noted the variety of religions and religious practices in Canada and stressed that what may be regarded as a religious belief or practice by one religion may be regarded as secular by another. Religion is not to be determined from the perspective of the “majority” or “mainstream” in society.
[350] In Jazairi v. Ontario Human Rights Commission, 1999, supra note 306, the Ontario Court of Appeal confirmed that the complainant’s opinions concerning the single-issue of the relationship between the Palestinians and Israel did not amount to a creed. However, the Court confirmed the importance of assessing each creed claim on its own facts and noted that whether or not some other political perspective that is made up of a cohesive belief system could amount to a "creed" was not before it. The Court commented that it would be a mistake to deal with such important issues in the abstract.
[351] In Roach v. Canada (Min. of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, 1994 CanLII 3453 (FCA), Linden JA distinguished between “conscience,” as a “location of profound moral and ethical beliefs,” and “political or other beliefs” that are protected by freedom of expression under s 2(b). If one holds that the Code should take its cue from the Charter in situations of statutory ambiguity, as discussed earliler, this could be interpreted to suggest that political belief should be excluded from the scope of creed protections under the Code.
[352] Chiodo (2012a; 2012b) makes this argument, more specifically, in the context of conscience under the Charter. She argues that the same threshold could apply to interpreting creed under the Code.
[353] Amselem, supra note 137.
[354] Ibid. at para 39.
[355] Ibid. The (1996) Policy on Creed speaks to this comprehensive belief or worldview in its definition of creed “as a professed system and confession of faith, including both beliefs and observances or worship” (p.4; emphasis added).
[356] Bennett v Canada (Attorney General), 2011 FC 1310 (CanLII) at para 55 (citing indicia for religion recognized in a United States decision. It is important to note, however, that some of the indicia cited in the U.S. decision are not consistent with what have been found to be creeds in Ontario, e.g. the requirement of a founder or prophet, a clergy and important texts, prescribing dieting or fasting etc.).
[357] “In Amselem, supra note 137 for example,” Chiodo (2012a) argues, “while the apartment-dwellers’ belief that they had to erect succahs did not reflect an obligation incumbent on all Jews, it bore a nexus to the Jewish religion” (citing Amselem at para. 69). See Section V 3.2 above for more discussions of legal arguments and decisions raising a collective, association-based dimension of religion and creed.
[358] Chiodo, 2012b, p. 10.
[359] Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) (“Hashman”) Employment Tribunal (ET/3105555/09, 26 October 2011).
[360] Grainger plc v Nicholson (“Grainger”) [2010] IRLR 4 (EAT) [Employment Appeal Tribunal].
[361] Closely following international human rights law (in particular Article 18 of the Universal Declaration of Human Rights which extends rights to “religion or belief”), Article 9 of the European Convention on Human Rights provides that:
Citizens in European member countries may appeal to the ECHR, as individual plaintiffs, against their member state and its directives.
[362] Grainger, supra note 360.
[363] Other important cases not discussed here include McClintock v Department of Constitutional Affairs [2008] IRLR 29, R Williamson v the Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246, R v. Countryside Alliance v Attorney General [2007] UKHL 52, Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 and Eweida v British Airways Plc. [2009] ICR 303.
[365] Supra note 359.
[366] In the UK, the distinction between belief system and ‘mere’ opinion is derived from McClintock v Department of Constitutional Affairs [2008] IRLR 29, Times 5 December 2007, in which a Magistrate claimed that he had suffered discrimination due to his opposition to same sex marriage (Pitt, 2011, p. 389). He lost the case, “because the facts indicated that the real basis for his objection was not his interpretation of Christianity but rather his opinion that children fared best in a traditional household with a heterosexual couple (ibid).” In Hashman, the court states that in McClintock v. Department of Constitutional Affairs, some of the limits of the test were specified; more specifically, “it is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available (ibid, para 44).” Some argue that the distinction between a mere opinion and a philosophical belief system is blurry and difficult one open to significant divergences in interpretation – a point touched upon by the defense counsel in Hashman.
[367] Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 at para. 36 and R (Williamson) v the Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246 at para 23.
[368] R (Williamson) v the Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246
[369] Ibid, at para. 43.
[370] Note that in Hashman, supra note 359, the court explicitly limited the precedential value of the case by stating that the ruling pertained only to the views and circumstances of the plaintiff. The decision should therefore not be interpreted to mean that anti-foxhunting views in themselves constitute a philosophical belief system.
[371] Chiodo, 2012a.
[372] For example see Pitt, 2011.
[373] Supra note 359, at para 43.
Extending Code protection to non-religious beliefs and practices could affect employers and other organizations in Ontario in many ways.[374]
This could, for instance, increase administrative challenges for employers and organizations in determining whether, and to what extent and in what respects, less well known ”beliefs” may merit legal protection. Challenges would extend beyond merely determining what is a creed, to also distinguishing and assessing core and peripheral aspects of little known beliefs and practices to determine appropriate potential accommodations. Organizations, and the courts in some instances, are already struggling to deal with claims of interference with religious and creed rights (including determining what counts as “creed” and ”religion” and what practices merit accommodation) under existing terms and interpretations of the Code and Charter, post Amselem.[375] Such struggles will likely expand if the definition of creed expands.
An expanded definition of creed could also increase the number and volume of creed claims brought forward, in organizations and at the Tribunal (in part merely as a consequence of the publicity that a change in interpretations of creed under the Code could generate). This could also expand the scope of organizations’ duty to accommodate creeds short of undue hardship, affecting organizational costs and effective organizational functioning (albeit short of undue hardship).[376] For example, a large organization may be asked to refurnish an office, change a uniform, food offerings, etc. to accommodate an ethical vegan’s deeply held aversion to the use of animal products, including leather.
Finally, the implications of applying statutory defences under Section 18 (special interest organizations) and Section 24 (special employment) would need to be carefully considered.
[374] Such potential impacts are discussed in Chiodo’s (2012b) paper, “Conscience, Creed and the Code: Forthcoming Changes to the Ontario Human Rights Commission’s Policy on Creed.”
[375] See Chiodo, 2012b.
[376] Chiodo (2012b) is not overly concerned about this possibility, since she thinks most cases will continue to fail at the first prima facie stage of discrimination analysis, as is currently the case.