Atheists Deserve Protection Too Says Human Rights Tribunal of Ontario

Rene Chouinard is an atheist.  As a parent he teaches his child that she need not fear the gods of religion.  In fact, he advocates that every child be given the opportunity to read Just Pretend:  A Freethought Book for Children.  God is compared in the book to Santa Claus as something that is “just pretend.”[1]  When his child came home from school with a permission document to be signed by him to allow her to receive a Gideons New Testament he asked school board that the book Just Pretend also be distributed.  It was refused.  Further advocacy by Mr. Chouinard led the board to change its policy to be more inclusive.  It read:

Any requests for the distribution of religious publications in schools must be approved by the Director or designate and subsequently by the Principal, in consultation with the School Council and with pre-approved parental consent.

Again he made a request to distribute Just Pretend.  However the District School Board of Niagara refused the request for two reasons:  first, while the Board is entitled to sponsor the study of all religions without imposing the view of any particular religion – atheism is not a religion.  Second, the book Just Pretend is not a “globally recognized sacred text or authoritative source of any religion.  Rather it was a “secondary publication.”[2]

Mr. Chouinard commenced a complaint to the Human Rights Tribunal that the Board policy discriminated against him and his child with respect to services because of “creed,” contrary to s. 1 of the Human Rights Code.[3]

The tribunal was of the view that “‘creed’ in the Code includes a prohibition on discrimination because a person is atheist…. The purpose of prohibiting 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.”[4]

The tribunal correctly noted that within the Charter concept of “Freedom of Religion” is the protection of “expressions and manifestations of religious non-belief and refusals to participate in religious practice.”[5]  The Board argued that atheism did not fit the definition of religion as defined by the Supreme Court in the “Amselem”[6]decision which said that the person claiming a religious protection must show that:

he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.[7]

The tribunal rejected the Board’s interpretation of the law by noting a long line of Canadian case law and international legal norms that specifically protect those who have no religious beliefs as part of the concept of “freedom of religion.”

The confusion, it appears to me, arises from a number of factors:  first, the Human Rights Code uses the term “creed” as opposed to “religion.”  Query whether “religion” and “creed” are one in the same?  Second, section 2(a) Charter jurisprudence, while relevant, nevertheless comes from a slightly different perspective than the Code.  The Charter is concerned with the “state action toward citizen” (or public) context whereas the Code is concerned with the “citizen toward citizen” (or private) context. Third, the Charter also has the word “conscience” which the Code does not have.  Thus, the Charter protection includes both “religion” and “conscience.”  Therefore, the issue of protecting atheists should never be a problem in Charter litigation, because Charter language and the jurisprudence is broader in allowing for protection of non-belief.

While the Code uses the term “creed,” this decision makes it clear that the word “creed” goes beyond the concept of religion (having to do with a system of belief dealing with the divine) to believing that there is no divine.

Mr. Chouinard and the Canadian Civil Liberties Association argued that there should be no religious activities at the school, even after regular classroom time, because by doing so the school was indoctrinating children and that those children who were not permitted by their parents to participate would be singled out.  The tribunal rejected that argument and did not see any discrimination arising from the practise of sending home parental consent forms.

“To find that there can be no promotion of religious ideas or practices in public schools for those who want to participate in them would be to prohibit activities like optional religious clubs in high schools or the provision of prayer rooms,” the Tribunal noted and then continued,

In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces.  Indeed, such a policy could be contrary to Code values of diversity and inclusion.  Creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed.[8]

In the end the Tribunal found the Board policy did not ensure neutrality.  Its lack of clarity led to inconsistency.  If the Board is to have a policy of handing out religious material it must make an effort to encourage a diversity of literature and awareness of the policy. The Code requires that all creeds be permitted to distribute material with parental consent to the student.  The material cannot be limited by “recognized sacred texts.”  “The restriction to sacred or foundational texts excludes some creeds and is therefore discriminatory.  The requirement that there be “global recognition” may also have the effect of excluding emerging or non-traditional creeds.”[9]

The Tribunal has given the Board six months to develop a new policy that meets the Code requirements.

This decision, correctly in my view, ensures that atheists are protected from discrimination.  Most students of philosophy and history would agree that the concept of “freedom of religion” has long held to that position.  Indeed the title of United Nations Special Rapporteur of “Freedom of Religion or Belief” – is indicative that there are belief’s that may not fit the definition of “religion” but are nevertheless protected.

To the extent that this tribunal decision recognizes the protection of atheists from discrimination is laudable.  However, it would be troubling to view this decision as suggesting “atheism” is a “religion.”  The Supreme Court of Canada, as noted above, recognizes “religion” as a system of worship or veneration toward a divine or spiritual object.  There are many “religions” of course; some even suggest that hockey is a religion for some.[10]  However, I suggest that if we constantly widen the definition of “religion” then we lose our ability to understand what we mean by the term.

There is a distinct difference between saying, “My non-religious belief ought to be protected under the legal concept known as ‘freedom of religion,’” and saying “My non-religious belief is my ‘religion.’”  That may be acceptable in a personal context – using the term “religion” as one’s worldview.  However, in law we need to be more precise – “religion” must not be a catchall for everything we want it to be.  It must be distinct.  That is what the SCC in Amselem tried to do.  It is helpful to have such distinctions because it allows us to see the difference when another claim comes around.

Atheists need the same protection as religionists do – no question about that.  But to say that Atheism is a “religion” as understood in Charter jurisprudence – I beg to differ.

[1] R.C. v. District School Board of Niagara 2013 HRTO 1382 at para. 14.