We’re considering creed
When the Ontario Human Rights Code became law in 1962, creed was one of the original grounds of discrimination. At the time, there was significant overt discrimination against religious minorities. Since then, Canada’s legal and societal approach to creed rights has evolved but it continues to be one of the most complex and controversial areas of rights law.
Creed rights tend to give rise to strong opinions, even among people who may not otherwise have much to say about human rights. Everything from what creed is (and what beliefs and practices are protected under the ground of creed), how creed claims are proven, how creed must be accommodated and what to do when creed bumps up against other rights have led to judicial interpretation and much public debate. In this challenging environment, the OHRC has been following an intensive process to update our policy on creed. The consultation stage included an online survey that netted over 1,700 responses, focus groups, and discussions with faith leaders, diverse community members, academics, and human rights lawyers and practitioners.
In the Fall of 2013, we released Human rights and creed: research and consultation report which looks at the past and present social trends and dynamics that contribute to contemporary forms of discrimination based on creed. The report includes many insights that will guide us in developing the new policy.
The next step is to analyze what we have heard and launch a new policy on creed. This will be completed by Spring 2015.
Bibles in schools: R.C. v. District School Board of Niagara
In an August 2013 decision, the Human Rights Tribunal of Ontario (HRTO) ruled that the District School Board of Niagara’s policies for distributing religious literature in schools were discriminatory. The OHRC intervened in this case, where the applicants, who identify as atheist, believed the Board’s original and amended policies were discriminatory. The original policy allowed only the Gideons to distribute religious literature to grade five students, with parental consent. The amended policy granted discretion to approve only the distribution of “religious publications” with parental consent.
The HRTO found that protection against discrimination based on creed extended to atheism, and said 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.”
The HRTO ordered that unless the Board develops a new policy that complies with Code principles, it cannot distribute religious publications in its schools. The Board had six months to develop a new policy. This decision makes it clear that Code protections against discrimination based on creed can cover persons who are not religious, including atheists. It also affirms Code values of diversity, equality and inclusion, recognizing a legitimate place for the expression of diverse religious ideas and practices within public schools and institutions.
This year in history
Multani v. Commission Scolaire Marguerite-Bourgeoys (Supreme Court of Canada)
Mr. Multani, a young Sikh student in Quebec, wished to wear his kirpan, a metal object resembling a dagger, worn as an expression of the Sikh faith. The school’s board prohibited this. The Quebec Court of Appeal affirmed the board’s decision.
Mr. Multani appealed to the Supreme Court of Canada, and we intervened because of our expertise arising from a similar 1991 case. As a result of our argument in that case, all schools in Ontario must accommodate this religious practice, provided the kirpan is worn with safety conditions. In the Multani case, we argued that the Ontario practice set out in the 1991 precedent should be applied across Canada.
In its unanimous 2006 decision, the Court struck down the Quebec Court of Appeal’s decision, and found that Mr. Multani should be permitted to wear his kirpan to school provided it was in a sheath, was difficult to remove and was worn under his clothes. The Court held that the total ban on wearing of a kirpan violated the Charter of Rights and Freedoms and could not be justified as a reasonable limit prescribed by law.
Creed, trial rights: R. v. N.S.
The OHRC intervened in a case involving a Muslim woman who was asking the Supreme Court of Canada to confirm her right to wear a niqab (face veil) while testifying against two family members accused of sexually assaulting her as a child. The case engaged competing religious and gender equality rights on the one hand, and the right to make full answer and defence in a criminal trial on the other. The OHRC urged the Court to adopt a clear process for reconciling rights based on earlier case law and the new OHRC policy.
In its December 2012 majority decision, the Court set out a framework to be applied on a case-by-case basis. Applying this framework involves answering four questions:
- Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
- Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
- Is there a way to accommodate both rights and avoid the conflict between them?
- If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?
The Court’s framework is consistent with the OHRC’s Policy on competing human rights, which emphasizes the importance of considering competing rights on a case-by-case basis and calls for:
- Evaluating each set of apparently competing rights
- Searching for measures to allow the enjoyment of each set of rights
- If this is not possible, making a decision that considers the impact on each set of rights.