Greater pro­tec­tion of re­li­gious rights, or ap­pease­ment?

National Post (Latest Edition) - - ISSUE & IDEAS - Su­san Martinuk Na­tional Post Su­san Martinuk is a Van­cou­ver- based colum­nist.

The On­tario Hu­man Rights Com­mis­sion ( OHRC) re­cently at­tempted to put an end to the con­tro­versy over Mus­lim prayers at schools in the Peel School Dis­trict. It ruled that it is the re­spon­si­bil­ity of ed­u­ca­tors to ac­com­mo­date the re­li­gious needs of their stu­dents and, in the present case, that means pro­vid­ing a com­mon time and place for Mus­lim stu­dents to carry out their re­quired prayers “dur­ing nor­mal school hours.”

To some, this ends the con­tro­versy and anger that had been brew­ing at public school board meet­ings. As one school board mem­ber re­port­edly claimed, “re­li­gious ac­com­mo­da­tion is not like uni­corns that you do or do not be­lieve in. It is the law.” But the rul­ing also rep- re­sents a fun­da­men­tal shift in the HRC’s typ­i­cal un­der­stand­ing of re­li­gious ac­com­mo­da­tion and it re­mains patently un­clear as to whether the rul­ing con­sti­tutes a law (or a fair law).

For that rea­son, some may view the rul­ing is a one- off con­ces­sion to a re­li­gious mi­nor­ity. In a more pos­i­tive light, oth­ers may con­sider it to be an ini­tial sig­nal that HRCs may be in­creas­ingly will­ing to un­der­score the re­li­gious rights of all Cana­di­ans, whether they be Jews, Chris­tians, Hin­dus or any other faith.

Thus far, rul­ings by hu­man rights bod­ies have been no­to­ri­ous f or com­monly sub­ju­gat­ing re­li­gious rights and free­doms to the rights of other (pri­mar­ily mi­nor­ity) groups.

For ex­am­ple, in 2010, an On­tario hu­man rights tri­bunal ruled against Chris­tian Hori­zons for ter­mi­nat­ing an em­ployee af­ter she started a same- sex re­la­tion­ship. Like all em­ploy­ees of Chris­tian Hori­zons, she had ini­tially signed a life­styles and morals code that specif­i­cally banned sex­ual re­la­tion­ships out­side of het­ero­sex­ual mar­riage. In 2006, a B.C. hu­man rights tri­bunal dis­missed a grad­u­ate stu­dent’s claim of dis­crim­i­na­tion against her Chris­tian faith. While at­tend­ing the Univer­sity of Bri­tish Columbia, Cyn­thia Maughan par­tic­i­pated in an English class that elected to hold ses­sions on Sun­days. As a Chris­tian, Maughan felt this failed to ac- com­mo­date her faith and her in­ten­tion to at­tend church ser­vices. Other hu­man rights tri­bunal or com­mis­sion de­ci­sions have ei­ther led di­rectly, or con­trib­uted, to the re­moval of the Lord’s Prayer from class­rooms and public events, the dis­missal of the term “Christ­mas” and Christ­mas trees to mark the cel­e­bra­tion of a highly-sig­nif­i­cant Chris­tian event and a gen­eral re­moval of Chris­tian events and sym­bols from the public realm.

Given the above, it is easy to be cyn­i­cal about the present rul­ing. It can eas­ily be in­ter­preted as a “Chris­tians need not ap­ply” mes­sage or an in­di­ca­tion of favouritis­m to­ward one re­li­gion at the ex­pense of an­other. And if that’s the case, it is in­her­ently wrong. A land­mark rul­ing by the Supreme Court of Canada (2015) termed the recita­tion of the Lord’s Prayer at a town coun­cil meet­ing as un­con­sti­tu­tional be­cause the “spon­sor­ship of one re­li­gious tra­di­tion by the state in breach of its duty of neu­tral­ity amounts to dis­crim­i­na­tion against all other such tra­di­tions.”

Still, while HRCs have gen­er­ally ig­nored pro­tec­tions for Chris­tian­ity ( the largest faith group in Canada), it is in­ter­est­ing that it has taken a com­plaint by a re­li­gious mi­nor­ity ( Mus­lims) to com­pel a hu­man rights com­mis­sion to cre­ate a pol­icy that ac­knowl­edges the need to pro­tect re­li­gious free­doms in Canada.

Re­li­gion is im­por­tant to the lives of a vast num­ber of peo­ple in our coun­try and this rul­ing will in­vari­ably impact those be­yond the Mus­lim faith. As such, the com­ing months and years will un­doubt­edly in­volve at­tempts to clar­ify its mean­ing, in­clud­ing the ex­tent to which it will uti­lize com­mon sense in de­ter­min­ing the le­git­i­macy of var­i­ous com­plaints and the de­gree to which it will pro­tect in­di­vid­u­als vs. groups.

At its best, this rul­ing is a pos­i­tive in­di­ca­tor that Canada’s hu­man rights bod­ies are open to the greater pro­tec­tion of re­li­gious rights. At its worst, it rep­re­sents ap­pease­ment to a re­li­gious mi­nor­ity and a sig­nal that the HRC has no in­ten­tion of es­tab­lish­ing a level play­ing field for all faiths.

EX­TENT TO WHICH IT WILL UTI­LIZE COM­MON SENSE.

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