Mr. Zanette was a long-time volunteer for the Ottawa Chamber Music Society, or Chamberfest, a not-for-profit that puts on a number of musical events throughout the year. He was aware of and agreed to a number of Chamberfest policies, including its dress code, which prohibited the alteration of name tags. Even so, he placed a rainbow flag sticker on his name tag while volunteering as an usher at a 2019 event. A representative of Ottawa Chamber Music Society (OCMS) asked him to remove the sticker from the name tag in accordance with the dress code. Mr. Zanette eventually removed the sticker and continued to volunteer with Chamberfest without the issue being raised again. Later, he filed a human rights complaint alleging that the OCMS’ direction to remove the sticker from his name tag was discriminatory on the basis of sexual orientation, gender identity, and gender expression.

For his complaint to be successful, Mr. Zanette had to demonstrate prima facie discrimination by proving three elements:

1. That he has a characteristic that is protected by the Human Rights Code of Ontario (the Code);
2. That he suffered disadvantage or an adverse impact of some kind; and
3. That the protected characteristic was a factor in that disadvantage or adverse impact.

While Mr. Zanette is undoubtedly a member of a Code-protected group (sexual orientation, gender identity or gender expression), that alone was insufficient for finding prima facie discrimination. The Tribunal noted that not all differential treatment is discriminatory. Rather, the actions in question – here, asking for the rainbow sticker’s removal – have to engage the right to equal treatment in a substantive sense. That means actions that are arbitrary or “create a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage”. An action merely being unfair does not engage Code protection; it must rise to the level of prohibited kinds of discrimination.

The Tribunal held that OCMS’ request was not direct discrimination because it was based on their dress code. This dress code applied equally to all staff and volunteers regardless of the cause being promoted. There was no evidence to suggest that it was arbitrarily applied to Mr. Zanette on the basis of his sexual orientation, gender identity, or gender expression.

The Tribunal then held that OCMS’ request was not indirect discrimination, which is when a requirement that appears neutral excludes or disadvantages a group protected by the Code, for the same reason: this dress code applied equally to all staff, volunteers, and causes. There was no evidence that any staff or volunteer had ever been allowed to alter their name tag.

Finally, there was no evidence to show that wearing a rainbow sticker was necessary for being a member of that community. Therefore, being asked to remove it because of a uniformly applying dress code did not amount to substantive discrimination under the Code, and the application was dismissed.

Conclusion

So, can dress codes be discriminatory? Potentially yes, if they are applied arbitrarily or unfairly. This decision is an important reminder that volunteers can file human rights complaints and that any dress code should be clearly written, consistently applied and enforced, and that volunteers need to be made aware of any dress code in advance. Allowing a volunteer to promote one cause or another will likely mean that all must be allowed, or a claim for substantive discrimination could succeed.

The post Can A Dress Code Be Discriminatory? appeared first on CCCC Blogs.

Christianity and human rights is one subject that is getting a fair bit of discussion in recent decades.  To what extent do we owe a debt to Christianity for human rights we experience in the West?  Or, have the abuses of the various forms of Christianity throughout history wiped out all goodwill to say anything on the matter of human rights?  To be sure there are extremes but should the extremes of Christianity temper our view of the religion as a whole?

If we were to listen only to commentators such as Christopher Hitchens, Christianity and its sacred text has very little redeeming qualities.  (Incidentally, I do not know if he ever spoke disparagingly or of the irony that his name “Christopher” is from the Greek Χριστοφορος (Christophoros) meaning “bearing Christ”).  He said the following of the Bible:

The Bible may, indeed does, contain a warrant for trafficking in humans, for ethnic cleansing, for slavery, for bride-price, and for indiscriminate massacre, but we are not bound by any of it because it was put together by crude, uncultured human mammals. (God is Not Great, (Toronto:  McClelland & Stewart, 2007), p. 102)

Despite such criticisms there are other atheists like Jürgen Habermas, who observes the pivotal role Christianity played in laying the foundation of our current liberal democracy,

Christianity has functioned for the normative self-understanding of modernity as more than a mere precursor or a catalyst. Egalitarian universalism, from which sprang the ideas of freedom and social solidarity, of an autonomous conduct of life and emancipation, of the individual morality of conscience, human rights, and democracy, is the direct heir to the Judaic ethic of justice and the Christian ethic of love. This legacy, substantially unchanged, has been the object of continual critical appropriation and reinterpretation. To this day, there is no alternative to it. And in the light of the current challenges of a postnational constellation, we continue to draw on the substance of this heritage. Everything else is just idle postmodern talk. (Time of transitions (Cambridge: Polity Press 2006), p. 150-151.)

Some years ago I had the privilege of interviewing John Witte, Jr., who is the Robert W. Woodruff Professor of Law; McDonald Distinguished Professor; and Director, Center for the Study of Law and Religion, at Emory University, Atlanta, Georgia.  I invite you to watch that interview by clicking here:

Then let us know what you think about Witte’s analysis and what we can learn about the ongoing debate.  I look forward to reading your comments!

The post What’s Been Happening: A Review Part 1: Christianity and Human Rights appeared first on CCCC Blogs.

Redefining “creed” is not a course of action the OHRC should take because:

1. Most importantly, redefining “creed” to include non-religious beliefs will diminish the protection given to religious groups. In short, redefining “creed” to include “ethical veganism,” “pacifism,” “humanism,” and the like, caters to a very individualistic view of religious freedom and does not take into account the communal nature of religion.
2. There are other ways the OHRC can reach its objective in preventing discrimination on those other “isms” such as having the legislature create another ground of protection (for example, “conscience”) that would not require a redefinition of “creed;”
3. Redefining a specific term in the Ontario Human Rights Code is the work of the democratically elected legislature and not an appointed bureaucratic body that administers the law.

Religious Communal Rights May Be Diminished

The word “creed” has a long historical meaning that should be retained. When we hear the word “creed,” we are mindful of the Apostle’s Creed (390 AD) and the Nicene Creed (325 AD). The word comes from the Latin “credo” meaning, “I believe.” A creed is a statement of what “I believe.” It is what I believe about the nature, purpose and meaning of life. So in one sense it is individual, but in another it is communal.

These ancient creeds were created by the Christian community to express their shared religious understanding of their relationship with God and His Son, Jesus Christ. They outline the essentials of the community’s understanding – the basic foundational premises upon which they built their culture.

Back in 1962, when the Human Rights Code was first given legislative approval, the word “creed” was chosen for good reason. The coming into force of the Human Rights Code on June 15, 1962, came with an intellectual and historical context that shaped the public debate and discussion. Less than twenty years before, hundreds of thousands of men and women in uniform returned from the bloody battlefields of Europe. The Jewish holocaust was etched on the national psyche. In 1945, the Ontario Court in the Drummond Wren case[1] held that it was against public policy to restrict the sale of land on the basis of race and religion. In that case, the deed transferring land said, “Land not to be sold to Jews or persons of objectionable nationality.” The Ontario court simply could not tolerate the discrimination against the Jewish people which, “…lends poignancy to the matter when one considers that anti-Semitism has been a weapon in the hands of our recently-defeated enemies, and the scourge of the world.”[2]

The point here is that the sufferings of the Jewish people played a huge part in the public conscience of Ontario to establish a Human Rights Code to begin with,[3] and the word “creed,” aptly captured both the individual and communal religious beliefs and practices of such minority groups.

The Meaning of Words Matter

Changing the meaning of creed from what we, as a civilization, have known it to be for millennia is problematic. We need our words to have a distinct meanings, otherwise we become confused by the imprecise definitions and our ability to communicate is compromised. The word “creed” should not be stretched beyond its long historic meaning. Otherwise it is unfair, unjust, and in my opinion, untruthful. James Davison Hunter, To Change The World, p. 206, says it well,

“…[W]hen the objectified and shared meaning of words is undermined, when we no longer have confidence that words signify what we thought they signified, then it is possible to impute any meaning to words one desires. And if words can mean anything, then they have no intrinsic meaning or at least no possibility of a common meaning. They only mean what we say they mean. There are no fixed points of reference. What is more, there is no authority that can be appealed to in order to definitively establish the meaning of words or to adjudicate which meaning is more truthful or better than another. God? Nature? Science? Democracy? Tradition? None of these sources of authority can be trusted because each one exists under the same questioning gaze – they too are words that have been emptied of meaning.”

We Risk Losing Communal Rights
Including “ethical veganism, pacifism or humanism” as “creeds” would be intellectually dishonest. The fundamental problem is that a redefinition as contemplated by the OHRC would change the way courts will look at communal rights or associational rights of religious groups. The reason is simple – “ethical veganism, pacifism or humanism” are first and foremost clearly individual characteristics. They do not evoke understandings of community in the same way that a Christian denomination does. While a Christian faith community may have individual members who are “ethical vegan” or “pacifist,” they are not brought together because of those characteristics. Rather, such communities come together because of their religious ties. That is to say, religious in the sense of their common understanding of their relationship to the Divine, the object of their worship.

The ethical vegans, pacifists and humanists are not brought together by their worship of the same deity – they come together because of a common singular concept – not eating meat, not killing, not believing in a god. The religious groups, on the other hand, have a broad understanding of their place in the world based on their understanding of their respective place before the deity. Their religious beliefs are comprehensive, and not restricted to a single issue. They guide their every aspect of life.

For example, the fact that a person is a pacifist will not be the motivating factor in establishing a soup kitchen. However, a person within the Judeo-Christian religious belief system will see that a soup kitchen is directly related to the teachings of Christ to love one’s neighbour (Matt. 25:35 and Isaiah 58).

Why Not Use Another Term?
I do see the wisdom in protecting individuals who are ethically vegan, or pacifist, or humanist, but they should be protected based on their own merits instead of equating them to religious belief. Rather than arbitrarily changing the definition of “creed” to mean something more inclusive, the best solution would be to add to the Human Rights Code another word that will allow more inclusivity such as “conscience.” “Conscience” is already used in the Canadian Charter and seems like an obvious solution. In other words, open up another category such as a “deeply held ethical self-understanding” or words to that effect. Words matter, and we should not be reinventing meanings of long established understandings.

Redefinition Requires A Public Debate
Standard political philosophy of the West requires law to be changed by democratically elected officials who are granted authority to make law. Democratic governance is divided into three major spheres – the executive (which translates to the premier and prime minister with their respective cabinets); the legislature; and the courts. The legislature is the place where public policy is debated on the floor of the house and in its committees.

The OHRC is a bureaucratic arm of the executive. Legally, it does not have any jurisdiction to make law. Rather, it enforces the Human Rights Code on behalf of the premier and her government. However, in practice it effectively does indirectly make, or at least shape, law because the OHRC has taken upon itself the role of developing Human Rights Policies which the courts tend to follow. These policies are the commission’s current interpretation of the law, but they are, in its own words, “cutting-edge and innovative interpretations.” “They open up possibilities for expanding the protections of the Code, address new and emerging human rights issues and trends, incorporate international perspectives on human rights….”[4]

Though the OHRC policies are not law – they are “given great deference”[5] by the courts. In other words, the courts and the Human Rights Tribunal of Ontario will be inclined to follow the OHRC interpretation of the law on any given human rights case. The courts justify their deference because they respect all of the work that the OHRC puts into its policies. It is no small feat – it takes years to develop these policies. Once the OHRC decides, based upon its experience, the complaints they receive, etc. that a particular area such as “creed” needs to be studied, it starts a four step process.
1. It determines the current law. Lawyers and legal academics are brought together to discuss the state of the law.
2. Academic and social science research is conducted on the issue to “identify historical factors, changing perceptions and understandings of terms and concepts, and alternative approaches to addressing and resolving concerns.”[6]
3. The OHRC conducts public consultation with a number of stakeholders such as employers, unions, public and private service providers, human resource professionals, community groups, advocate, lawyers, academics, and governments.[7] These groups may be brought into focus groups to test the draft policies.
4. Once approved, the policies are then promoted to the public. “Promotion is critical to raising public awareness and for ensuring that a policy is a vital force that influences society, tribunals, and courts.”[8]

The fundamental problem with this process is that there is no large open public debate during the incubation stage of the policy development. The general public will not hear of what is going on until the policy is already completed and marketed to the public. Any criticism that the process is not public would be deflected by OHRC’s claim that it undergoes a long consultative process in developing policy. Further, criticism would be countered that this process is more in depth than a legislative process would ever be.

However, the fact remains that this process is highly susceptible to advocacy groups that have an agenda to change public perception. It is much easier to gain the ear of the academia and the professional class than to try to convince the public at large. For example, there is a common perception amongst the cultural elites that religion must only deal with what they call “core” matters such as beliefs, worship and symbols. These elites stress that any time religious practices come into the public sphere there must be limits. They argue, for example, that religious groups are not dealing with “core” religious matters if they are running a nursing home or a school. It is not “core” only because they say it is not core and have the influence to convince others in the elite classes that this is so. However, for those of us in the Christian religion – we who have been running nursing homes, schools, and many other ministries for the poor, for at least fifteen hundred to two thousand years – these activities are very much core to our faith.

Any redefinition of “creed” needs to be debated in open and public forums such as the legislature because the changes being proposed as to how we, as religious communities, maintain our religious identity require more than a focus group for discussion.

A Proposal
Broadening the definition of “creed” would weaken the communal understanding of religion in both the legal realm and the public forum. This is because protecting non-religious sentiments using “creed” limits our ability to make clear distinctions as to what we mean by religious belief and gives the perception that religious belief is only concerned with individual autonomy, when in reality religious belief has both individual and communal aspects.

A simple solution is to amend the Human Rights Code to include the word “conscience.” That will protect the individual conscientious positions of the ethical vegan, pacifist or humanist and will leave “creed” to mean what it has always meant – a religious belief of the individual and the community.

Given that diversity and multiculturalism are the mantra of our age, if they are to have any real meaning, they must mean that religious individuals and religious bodies be permitted to follow their understanding of morality and self-identity based on creed. We are all living on the same real estate and we need to respect each other. We must not be forced to comply in matters that go contrary to our core beliefs. Respect also means that we may have to respectfully, with grace, disagree at times without being punished for doing so.

—–

1. Drummond Wren, [1945] O.J. No. 546.
2. Drummond Wren, at para. 20.
3. Irwin Cotler, “Jewis NGOs and Religious Human Rights: A Case Study,” in John Witte, Jr., Religious Human Rights in Global Perspective: Religious Perspectives, (The Hague: Kluwer Law, 1996), p. 258-259.
4. Shaheen Azmi, “Addressing Competing Human Rights Claims: The Policy Approach of the Ontario Human Rights Commission,” in Shaheen Azimi, Lorne Foster, & Lesley Jacobs, Balancing Competing Human Rights Claims in a Diverse Society, Institutions, Policy, Principles (Toronto: Irwin Law, 2012), p. 98.
5. Shaheen Azmi, p. 99.
6. Shaheen Azmi, p. 102.
7. Shaheen Azmi, p. 103.
8. Shaheen Azmi, p. 104.

The post The Word “Creed” – Ontario Human Rights Creed Survey Ends on October 16 appeared first on CCCC Blogs.

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.

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