York University caused much controversy earlier this month by agreeing that a male student was not required to meet with female class members in connection with a group project. While the male student's reason for the request was apparently based on a religious belief, the university's decision was based on the fact that the course was advertised to be an online course with no in-person participation required; as such, the student was not required to participate in any way in the group project.
Notwithstanding this explanation, a furor erupted over York University's decision. Justice Minister Peter MacKay commented that "This is what we've tried to combat in places like Afghanistan". A Globe and Mail columnist declared "I expected this back in Iran, not at York University". The professor at the heart of the matter “ who originally refused the student's request “ said that to accommodate would make the university an "accessory to sexism".
These views are certainly valid. But it's worth considering the issue closely, because this will not be the last time that public institutions are required to consider the scope of religious accommodation. Indeed, according to a recent Ontario Human Rights Tribunal decision, the "religions" or "creeds" whose needs must be accommodated even include secular type beliefs such as atheism or humanism. With such a broad ambit of beliefs clamouring for accommodation, it is worth asking: where should accommodation begin, and where should it end?
The York professor who denied the request told CBC news that the issue is sufficiently important that a Royal Commission should be struck on the issue. And if that sounds familiar, that's because it is: that's what happened in Quebec. The Quebec Charter of Values was at least in part a reaction to the Bouchard-Taylor Commission on Reasonable Accommodation. That Commission proposed the promotion of secularism including the prohibition of certain public sector employees from wearing religious symbols.
So where does religious accommodation stand, particularly when it brushes up against rights of other people? Here's what we know for sure from Charter jurisprudence, and similar views can be found in human rights tribunal decisions.
First, the Supreme Court of Canada has said that the freedom of religion is "expansive". The Court said 20 years ago that "Freedom of religion is of fundamental importance to Canadian democracy. If reasonable accommodation of religious beliefs can be undertaken, it should be."
Second, the Supreme Court of Canada has consistently rejected creating a "hierarchy of rights", where one right is considered to be superior to another. In Dagenais v CBC, Chief Justice Lamer wrote for the majority that "[w]hen the protected rights of two individuals come into conflict Charter principles require a balance to be achieved that fully respects the importance of both sets of rights." The Court has never waiver from this approach, whether dealing with codes of conduct at Trinity Western, or contemplating same-sex marriage legislation. It's all about balance. It is unlikely that the Supreme Court will ever abandon this contextual and flexible approach.
Third, the Supreme Court of Canada has differentiated between the freedom to believe however the individual sees fit, but "the freedom to act upon those beliefs is considerably narrower". In one case, the majority of the Supreme Court said that "freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others."
Fourth, we know that the courts caution against the "tyranny of the majority". In the earliest case on freedom of religion, Justice Dickson (as he then was) wrote that "What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view". Just as freedom of expression protects unpopular or distasteful views not shared by the majority, freedom of religion also protects unpopular or distasteful practices not shared by the majority.
One can quarrel with any of these conclusions of the Court. Notwithstanding the protestations that there is no hierarchy of rights in Canada, there clearly is: the right to life, for example, will always prevail over other rights such as religion, as it did in B.(R.) v Children's Aid Society. Notwithstanding the protestations that we are to protect against the tyranny of the majority and protect the unpopular views as much as the popular ones, the Court was willing to uphold the wrongheaded legislation in Whatcott which violated Whatcott's freedom of speech, which decision was clearly influenced by the distasteful nature of the statements made by Whatcott.
Quarreling aside, we are nonetheless left with what these appellate cases stand for, as described above. Judged by that measure, how does the university's decision stand? If we were to assume that accommodation had been granted on religious grounds (contrary to the university's claims), then the university did what it was supposed to do in terms of process, regardless of whether one agrees with the result. The Supreme Court has said that if religious accommodation is possible, then it should be. The fact that it results in a conflict with equality rights of female class members is not, in and of itself, dispositive: there is no hierarchy of rights in Canada. And it is also not dispositive that equality rights are infringed if accommodation is granted, just as it is not dispositive that religious rights are infringed if it is not: it is all about balancing or reconciling the competing rights.
The result of the framework created by our appellate courts is one which, by definition, admits of no clear answer. Outside of Quebec at least, we are not fond of bright-line tests when it comes to human rights. In some instances, religious accommodation will harm, limit, or affect other rights, and in some instances, religious accommodation will not be possible (harming, limiting or affecting the claimant's rights). The result will invariably be one in which reasonable people might disagree. What is important is to not allow the tyranny of the majority to dominate the debate, simply because the overwhelming majority of us do not share the individual claimant's views.
Viewed from that lens, York University did exactly what it should have done. A kneejerk refusal to accommodate is decidedly what the universities are not supposed to do. People may well disagree with the outcome in this case, but that does not make York University the same thing as Afghanistan or Iran. It does not make the decision-makers a group of insensitive sexist thugs. It's a contextual balancing framework that the Supreme Court created, and York University had no choice but to apply that framework. Reasonable people can and will disagree on the outcome of any balancing exercise. There's no doubt that it may well be time to have a rational debate on the limits of reasonable accommodation. But those who give an expansive view of religious accommodation are entitled to those views and do not deserve the torches and pitchforks York University has had to face.