Religious Discrimination in Canada

Canada takes pride in being a progressive nation, but our government is relying on the same tired excuses for religious discrimination that the United States Supreme Court dismissed more than fifty years ago.

The European Convention on Human Rights prohibits religious discrimination. The United States Constitution “prohibit[s] governments from discriminating in the distribution of public benefits based upon religious status or sincerity.” And in Canada, section 15 of the Charter of Rights and Freedoms guarantees that no one will be denied a benefit to which they are otherwise entitled based on their religion.

 

No one should be denied equal treatment in seeking a public benefit because of his or her religion. This is a bedrock legal principle of liberal democracies worldwide.

The European Convention on Human Rights prohibits religious discrimination. The United States Constitution “prohibit[s] governments from discriminating in the distribution of public benefits based upon religious status or sincerity.” And in Canada, section 15 of the Charter of Rights and Freedomsguarantees that no one will be denied a benefit to which they are otherwise entitled based on their religion.

Public support for these principles in Canada is reflected in the outcry over Bill 62, Quebec’s new law that effectively denies access to public services for religious minorities who wear face coverings because of their sincere religious beliefs. A constitutional challenge has been launched, and last month, the Quebec Superior Court temporarily suspended the law pending that litigation.

But the threat of religious discrimination continues to loom.

Much less attention, for example, has been afforded to other provisions in Bill 62 that discriminate against faith-based childcare programs. Private childcare providers in Quebec are eligible for public subsidies, but any that teach religious beliefs or practices are now automatically disqualified (section 20). It seems private daycares that begin their day with toddler yoga can receive government funding, but those that begin with prayer or Bible stories (as some childcares operated by religious communities do) cannot.

The Prime Minister has expressed concern about aspects of Bill 62, but his government has mirrored that Bill’s discriminatory approach in recent changes to its own Canada Summer Jobs program (CSJ). That program, which provides funding to help small businesses and charities create summer jobs for students, now requires Canadian employers to “attest” that both their jobs and their “core mandate” “respect” certain “values” identified by the federal government, including access to abortion and other issues on which there is a divergence of (religiously informed) beliefs.

Ironically, both the Quebec and federal governments’ initiatives undermine the very principles they claim to promote.

The stated purpose of Quebec’s Bill 62, for example, is to “foster adherence to State religious neutrality,” but it runs counter to much of the Supreme Court of Canada’s case law on that subject. The state’s duty of religious neutrality, which flows from the right to equal exercise of freedom of conscience and religion guaranteed by the Charter, requires governments to accommodate religious diversity, not extinguish it. Governments must neither favor nor hinder any particular belief. Creating a “neutral public space” does not mean the homogenization of private players—childcare providers included. Rather, it requires that those who adhere to secular beliefs not be given preference over those who adhere to religious beliefs, and vice versa.

Yet, in the name of “religious neutrality,” Bill 62 effectively imposes a requirement of non-belief in order to access a generally available benefit. This is anything but neutral. The Supreme Court of Canada has made clear that the government cannot dictate to a religious school—even one that receives public funding—how to teach or transmit its faith; this violates the Charter.

Similarly, in introducing changes to the CSJ program, the federal government is doing the very thing  it accuses its targeted organizations of doing: failing to “respect individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law.”

Like Bill 62, the new CSJ regime undermines state neutrality (which is, incidentally, one of the “values underlying the Charter of Rights and Freedoms”); it further undermines the rights and freedoms enshrined in the Charter itself, including freedom of opinion, expression, religion, and conscience. All of these guarantees protect the right to hold and express diverse views on moral issues without reprisal—including such issues as abortion. To insist that all must conform to the ideological mold of the government of the day offends the very notion of a “free and democratic society” espoused in section 1 of the Charter.

Some have argued that denying public funding does not impede religious freedom since organizations are still free to continue operating according to their religious beliefs. This may be true, but that freedom comes at the cost of absolute exclusion from the benefits of a public program for which they are otherwise fully qualified. The United States Supreme Court recently ruled against a state government for conditioning its public benefits this way, and Canada’s Supreme Court has emphasized that “freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.”

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