Canada: When Freedom Of Religion Competes With Equality Rights: A Look At The York University Controversy

Last Updated: January 20 2014
Article by Malinda Yuen

The University of York has garnered significant attention for a recent incident involving a Sociology professor, J. Paul Grayson, and an unnamed student who requested accommodation.

The difficulty arises from the nature of the student's request. He asked, based on his belief in an unnamed religion – I will assume for the purpose of this article that the belief was sincerely held – that he be excused from a group project in which he would have to work with women. His religious beliefs allegedly included a belief that men and women should not intermingle.

Grayson gave the request serious consideration. He brought it to the attention of the administration; he spoke to colleagues in the Department of Religion. The University instructed him to grant the student's requested accommodation. In an act of great integrity, Grayson nevertheless refused the student's request. According to the National Post,

Mr. Grayson ultimately ignored university brass and, together with his departmental colleagues, passed a resolution stating that "accommodations for students will not be made if they contribute to material or symbolic marginalizations of other students, faculty or teaching assistants."

Ultimately, the student went forward and participated in the project despite his stated concerns.

In a further act of integrity, Grayson has come forward with the details of the controversy. The University has stubbornly held fast to its decision that the student's request not to work with women students should have been accommodated. Of importance to the University's analysis was that Grayson had previously accommodated another student's request to complete course work off campus as the student was out of country. This student's request had nothing to do with either religious rights or a refusal to work with women.

Conflicting and competing rights are nothing new under either the Charter or under human rights legislation. * Indeed, various permutations of such conflicts arise all the time. Religious rights and right to free speech; conflicting religious beliefs; sexual orientation and religious rights; the list is endless. Where there are two competing Charter rights or values at stake, what is required is a careful analysis and definition of the competing rights and the values they reflect, and how these rights and values relate to one another: Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para. 153

The Supreme Court of Canada has clearly and repeatedly recognized that freedom of religion can be limited when a person's freedom to act in accordance with his or her beliefs may cause harm to or interfere with the rights of others (Multani, supra, at para. 26). For example, in B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, the claimants, who were Jehovah's Witnesses, contested an order that authorized the administration of a blood transfusion to their daughter. The Court held that the child's rights to life and health outweighed the parent's right to either freedom of religion or their parental liberties under s. 7 of the Charter.

Although it is perhaps an academic point, the Courts have stated that when one right trumps another in Charter cases, the proper analysis is to take place under section 1 of the Charter. What this means is that the rights may be violated, but that such violation is justified in a free and democratic society.

In a case rather similar to this one, Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, a teacher publicly made racist and discriminatory comments against Jews during his off-duty time. A parent brought the complaint to the School Board, which ordered disciplinary action. The Supreme Court recognized a teacher's right to act express anti-semitic views, but also recognized that such expression compromised the right of students to a school environment free of discrimination. Although the disciplinary action ordered by a Board of Inquiry violated Ross's right to freedom of expression, that violation was justified under s. 1 of the Charter.

In the York University case, it may well be that the student's rights were violated. However, in a free and democratic society that violation is easily justified. Discrimination against women should never be condoned or facilitated by any organization, especially an institution of higher learning. It is irrelevant that another student had been accommodated for being out of country because that request for accommodation in no way discriminated against any other group. In contrast, this particular student's request to be excused from working with women seriously impacts the right of women to an academic institution free from discrimination on the basis of sex. Grayson was correct – such an exception would contribute to the marginalization of women. The student's right to religious freedom does not trump this right. As the Supreme Court of Canada stated in R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 SCR 858, para. 34:

Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and in particular other Charter values which may conflict with their unrestricted and literal enforcement.

In Canada, religious tolerance and freedom does not mean the right to discriminate against women, gays, cultural or racial groups or other religious groups. That is not only the law – I'd like to think that is the culture as well. Such an attitude (or such a legal analysis) could lead down a slippery slope where the rights that have been afforded to all manners of minority and marginalized groups over the last decades could be eroded or lost. This is not simply a women's issue.

Grayson aptly described his thoughts on excusing the student from working with women – that he would be an "accessory to sexism." That is exactly the problem. The University's position creates a learning environment where sexism is allowed to flourish; where women are not valued equally; where Canadian values are eroded. This is highly disturbing for any institution or organization, but especially so at an otherwise well-respected institution of higher education.

*There is some controversy whether the Charter applies to universities - see Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII). In any case, although the legal analysis is somewhat different, the principles and result are the same. See, for example Brillinger v. Imaging Excellence, 2000 CanLII 20856 (ON HRT), where a Human Rights Tribunal held that a service provider could not refuse services to the Canadian Lesbian and Gay Archives on the basis of religious beliefs. Also of interest, particularly in Ontario, is the Ontario Human Rights Commission's policy on Competing Human Rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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