Diversity of faith in Canada did not start with the Charter.
The various First Nations who inhabited what is now Canada had a myriad of different spiritual traditions prior to European settlement. The Europeans who arrived were themselves of diverse backgrounds, including various denominations of Christianity.
Jewish immigration to Canada dates back to the 1700s, and Sikhs, Muslims, Buddhists and Hindus were present in Canada even in the 1800s. In the 21st century, our understanding of spiritual traditions and their role in a pluralistic democracy has expanded even further.
When Ontario’s Human Rights Code was introduced in 1961, it included an antiquated term in the prohibited grounds of discrimination of “creed.” When the Charter was introduced in 1982, it did not use this terminology and instead prohibited discrimination on the basis of religion. Creed, however, is never interpreted by the Code itself.
The terms creed and religion are similar, and have often been used interchangeably by the courts, but this is not always the case. Our understanding of creed under the Code has also evolved, and the Ontario Human Rights Commission released a new policy document which helps explain creed for the purposes of preventing discrimination.
The older OHRC policy document from 1996 stated,
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 of gods, or a single supreme being or deity is not a requisite.
Religion is broadly accepted by the OHRC 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).
The new policy document expresses a far more inclusive and expansive definition,
Creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life.
Although the older policy explicitly mentioned the beliefs and traditions of First Nations, many of the interviewees for the new policy described Indigenous Spirituality as a “way of life” and “way of knowing,” beyond the definition of either religion or spirituality.
One of the most significant changes in the time from the older policy document is the Supreme Court of Canada’s 2004 decision in Syndicat Northcrest v. Amselem, dealing with the use of tabernacles during the Jewish festival of Succoth. The majority held that s. 2(a) Charter rights are triggered where there is a sincerely held practice or believe that has a nexus with a religion, irrespective of whether the official religious dogma or officials indicate this practice or belief is required.
Freedom of religion, according to the Court, was a highly personal and subjective experience, and the state should not be the arbiter of religious dogma. The Court adopted this expansive definition based on the Commission’s 1996 policy, and the Commission played a role as intervener in that case.
Our understanding of creed has evolved further to understand this right as being a freedom from religion, especially where one belief is preferenced or selectively privileged over others. Indifference towards beliefs, even where a neutral standard may be set, may have the unintended effect of constructive discrimination, an issue experienced frequently by believers in non-traditional forms of creed. The new policy states,
Requiring the recitation of the Lord’s Prayer in schools and at public meetings has been found to be a form of religious pressure or compulsion that violates the religious freedoms of others.
Last year, the Supreme Court of Canada held in Mouvement laïque québécois v. Saguenay (City) indicated that even a non-denominational prayer may violate rights because it could favour those with religious faith over those who are atheists or have a non-religious faith. The Court did not preclude the use of opening statements or invocations at public meetings, as long as they are equally inclusive of the diverse religious and non-religious beliefs that people have.
The new policy is particularly important in Ontario, where the growth of those practicing religions other than historically dominant Protestant and Catholic denominations or creeds, has grown significantly, as has those who have no religion or creed at all. The growth of those practicing no faith or creed is even larger in the Prairies and B.C.
A 2013 Pew Centre Research report found,
…the number of Canadians who do not identify with any religion has been rising rapidly in recent decades, going from 4% in 1971 to nearly a quarter (24%) in 2011. The increase in religiously unaffiliated Canadians is similar, in some respects, to the rise of this group – sometimes referred to as the “nones” – in the United States. In both countries, only about one-in-twenty adults were religiously unaffiliated in the early 1970s. Disaffiliation began to rise markedly in Canada during the 1980s and in the United States during the 1990s. And over the past decade, both countries have seen a rapid increase in adults who say they have no religious affiliation.
The new OHRC focuses on the intersectionality of creed with many other forms of discrimination. It finds that the leading form of contemporary creed-based discrimination in Ontario is directed towards Muslims,
Stereotypes of Muslims as a threat to Canadian security and Canadian values and ways of life have been particularly pronounced, as have various forms of racial profiling. Because of this animosity, visible minority community members are sometimes broadly targeted based on outward appearances, and, in some cases, “perceived” associations with Islam (e.g. Arabs and South Asians).
What’s clear is that for all of our progress in Ontario, political and social trends in society still have a profound ability to affect how we treat others.
The report is silent about Mexicans, but it may seem as if Donald Trump does become President of the U.S., Ontario may not be the safe harbour for inclusion and tolerance that American refugees might seek.