A sliding scale between creed and religion

This post is cross-posted to CAnLii.

The Ontario Human Rights Tribunal had none of a claim to discrimination that was in part based on the claimant’s creed in the case of Sharma v Toronto. The claimant disputed the City of Toronto’s recently enacted by-law that requires enterprises open to the public to enforce masking. The applicant also claimed that his ‘bodily functions are impaired by face coverings’, which was discriminatory due to his disability. I won’t take this ground up here because the Tribunal’s findings were brief.

The case was dismissed at a summary hearing because the allegations could not be sustained against the City.

The alleged discrimination is interesting because the claimant attempts to push the definition of ‘creed’, which is a protected ground in Ontario’s Human Rights Code. The Tribunal’s approach to the right to one’s creed evokes questions regarding the judicial system’s appreciation of creed: lawyers, tribunal members, and judges have a hard time pinning the concept down, so they equate it to a secular religious belief. This is an unsatisfactory solution. The Human Rights Code is the basis for a right to one’s creed, but it exists beside Ontario’s Religious Freedom Act, which legislation has guaranteed religious freedom to Ontario’s subjects for the better part of two centuries. The existence of a statute that protects religious freedom means that the Human Rights Code alone cannot give us a complete view of the definition of ‘creed’ and its import.

This commentary proposes a sliding scale between religion as a word denoting spiritual belief and practise in community and creed, a word that captures a broader swath of collective and individual conduct. Visualizing the problem as a scale allows decision makers to acknowledge a wide segment of views under the terms ‘creed’ and ‘religion’ while focusing on limiting the protection of the freedom where necessary.

The Tribunal’s decision with respect to ‘creed’

The Tribunal dealt with the claim to discrimination based on ‘creed’ awfully quickly. Therein lies the problem. The applicant alleged that wearing a mask violated his right to appertain or express a creed. ‘Creed’ is a difficult word because it is often reflexively associated with religion. The tribunal says as much: ‘“Creed” is not defined in the Code, but most often engages an applicant’s sincerely held religious beliefs or practices” (para. 11).

Note those words: most often. The Tribunal quickly proceeds to wrap its reasons with respect to creed by citing the usual authority, Vezina v Elections Ontario. This case dealt with a jilted candidate for provincial by-election who was denied participation in local candidates’ debates. The Tribunal there adopted the criteria established by the Human Rights Commission. Creed ‘may have the following characteristics’:

a.   Is sincerely, freely and deeply held;

b.   Is integrally linked to a person’s self-definition and spiritual fulfilment;

c.   Is a particular, comprehensive and overarching system of belief that governs one’s conduct and practices;

d.   Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence; and

e.   Has some “nexus” or connection to an organization or community that professes a shared system of belief. (para. 10)

This definition may be quite restrictive because it essentially provides a non-denominational and a-theistic interpretation of the characteristic elements of religion. The Court of Appeal has seen fit to endorse musings about political opinion fitting within the ambit of ‘creed’. These opinions would have to rise to the level of a ‘belief system’ similar to religion (paras. 27-8).

The difficulty

‘Creed’ in the Human Rights Code exists without mention of religion. The absence of any mention of ‘religion’ may be due to the existence of the Religious Freedom Act—a holdover from the Province of Canada. The sole provision of the Religious Freedom Act reads:

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, provided the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province assured to all Her Majesty’s subjects within the same.

This section captures the definitions of religion, which frames the word as a belief in a supervening force. Notwithstanding the existence of the Religious Freedom Act, we’ve freely borrowed from our understanding of religion to define ‘creed’; the Vezina test closely resembles the Supreme Court’s test for religious belief in Amselem.

This resemblance makes applying ‘creed’ difficult and uncertain, especially on facts like Sharma’s, where a litigant sincerely holds a belief in community with others.

A note about statutory interpretation

The existence of a separate protection for religious freedom suggests that ‘creed’ be given an expansive meaning, one that readily admits of the word’s full definition. (Lest you’ve forgotten, the legislature is presumed to be cognizant of all law when it enacts legislation.) Three definitions from the Oxford English Dictionary (out of six) are instructive:

  • An accepted or professed system of religious belief; the faith of a community or an individual, esp. as expressed or capable of expression in a definite formula.
  • A system of belief in general; a set of opinions on any subject, e.g. politics or science.
  • Belief, faith (in reference to a single fact). rare.

These definitions allow for a far broader definition of ‘creed’, one that enhances the protections already in place for religion, and one that may be invoked to protect individual beliefs in a manner somewhat similar to protection of conscience.

The Human Rights Tribunal followed the tradition of interpreting ‘creed’ in a way similar to ‘religion’, which precludes a range of the word’s meaning. Expanding the meaning of the word to accord with its entire meaning better accords with Ontario’s statutory scheme and the legislature’s remedial objective when enacting the Human Rights Code.

Justice George Addy, just prior to his ascending to the bench, quoted the general rule: ‘the Legislature is presumed to not engage in “legislative pleonasm”.’ The modern rule is that the legislature is presumed to not engage in tautology: every word has meaning (2011 SCC 53, para. 38). One might presume that the legislature used ‘creed’ in the Human Rights Code fully aware of the Religious Freedom Act. Guaranteeing religion and things similar to religion creates significant overlap between statutes. The question is how this overlap may be reconciled to ensure that the legislature hasn’t wasted any ink protecting the same social ground twice.

The approach that seems to be favoured by the Vezina test is that ‘creed’ is the secular version of ‘religion’, but the words taken apart are defined by inferring qualities from one to the other. This is a confused approach that approximates ‘creed’ to the more tangible meaning of ‘religion’. Common lawyers may accept the logic because it is a loose analogy. Point (d) in the Vezina criteria is particularly suggestive of this conclusion: we can bring an image of religion to mind; creed is far harder to visualize.

Human rights legislation forces tribunals and courts to balance broader and more restrictive definitions to avoid absurdity. Absurdity occurs when legislation creates an effect that cannot be practically managed within the current legal system (Carfrae Estates Ltd. v. Gamble, para. 20).

If we take ‘creed’ and ‘religion’ as words capable of independent meaning, disharmony ensues between statutes because the words have such closely related meanings, but the legislature chose to use them with full knowledge of these differing meanings.

A tonic

This definitional issue is best resolved by reading the Human Rights Code and statute book as a whole. The Religious Freedom Act protects organized religions and associated worship; ‘creed’ is meant to protect the wider range of belief, systematic or singular. This proposition treats the two statutes as a continuum. The Human Rights Code creates an almost boundless protection of any sincerely held belief. The Religious Freedom Act is a more restricted protection of identified community beliefs and traditions.

The challenge facing the Human Rights Tribunal changes drastically if creed and religion are viewed as a scale. Activity on this scale doesn’t need to be categorized by deploying definitions to preclude conduct. The dictionary’s plain meaning is sufficient.

The Tribunal’s main activity with respect to creed is establishing what sincerely held beliefs are not productive to a free and democratic society. Sound familiar? Protecting the expression of certain beliefs, like those exhibited in Sharma, may not be feasible. This kind of restriction may follow the reasonable and bona fide test (s. 11 of the Code). The Tribunal then need only establish upper and lower limits to protection of ‘creed’, thus creating greater certainty for lawyers and subjects.

A policy is a temporary creed liable to be changed, but while it holds good it has got to be pursued with apostolic zeal. Mahatma Gandhi.