The scope of religious freedom is an increasingly sensitive topic in today's political (and secular) climate. From Quebec's most recent "religious neutrality" law that prevents public servants from wearing religious symbols in the course of their employment, to the Supreme Court's decision in Trinity Western, issues surrounding freedom of religion are at the forefront of lawmakers' minds. Religious rights become even more contentious as they permeate the boundaries of largely secular organizations, such as post-secondary institutions.
Universities and colleges owe a duty to accommodate students and employees possessing characteristics that are protected under human rights legislation, which includes religious beliefs. How this duty to accommodate is realized (or challenged) and the extent to which it protects diverse religious beliefs and practices varies by policy but is always subject to the principles of undue hardship.
LEGISLATED PROTECTION FOR RELIGIOUS BELIEFS
A common avenue for the protection of religious liberties in Canada is found in s. 2(a) of the Charter, which solidifies freedom of conscience and religion as a fundamental freedom under the Canadian Constitution. However, each province also has its own human rights legislation that protects individual liberties from being infringed by relevant government and private actors, including post-secondary institutions.
All provincial human rights legislation (with slight differences in wording amongst the provincial acts), generally prohibit discrimination in the provision of, or access to, a service based on a number of enumerated grounds, including religion.
Post-secondary institutions aptly fall under the heading of "provision of a service", meaning their policies and procedures must account for the diverse needs of student populations by ensuring they do not discriminate and by allowing for reasonable accommodation. While postsecondary institutions must accommodate employees as well as students, this article will focus on the provision of a service to students.
DUTY TO ACCOMMODATE
Post-secondary institutions are required to make reasonable efforts to accommodate students with characteristics that are protected under human rights legislation. The term "reasonable accommodation" is not new, but what reasonable accommodation actually means is still evolving.
This duty to accommodate in post-secondary institutions seems most prevalent in situations where a student has either a physical or a learning disability that directly impacts their academic success. However, the duty to accommodate is not limited to students with disabilities, rather, it applies to all students experiencing obstacles based on a protected ground.
The duty to accommodate includes the obligation of service providers, such as universities and colleges, to adjust rules, policies or practices to remove barriers, thus promoting equal participation and eliminating discrimination. However, postsecondary institutions may use the defence of undue hardship to deny certain accommodation requests. Much like the term "reasonable accommodation", however, defining undue hardship is similarly an ongoing challenge.
ACCOMMODATION POLICIES IN ATLANTIC CANADA
What is interesting is that religious accommodation policies in post-secondary institutions appear to have been implemented prior to, or in the absence of, any sort of triggering event (i.e. they do not appear to result from a complaint; rather, they reflect the institutions' proactive approach to recognizing and responding to the need to accommodate). These policies were likely designed to attract and accommodate the great influx of international students attending Canadian post-secondary institutions, as well as to adapt to the needs of Canada's growing immigrant population. According to the Association of Atlantic Universities, international students now make up 22 per cent of all university enrolment in Atlantic Canada. Immigration is also on the rise. In 2016, the Atlantic provinces welcomed over 13,000 immigrants, nearly five times that recorded in 1999.
Many Atlantic Canadian universities and colleges have implemented comprehensive policies surrounding religious accommodations to better reflect the needs of their diverse student populations. Dalhousie University, for example, boasts a robust Student Accommodation Policy that is administered by the Student Accessibility Centre. This policy is used to manage students' requests for accommodation in an "appropriate and timely manner".
Mount Saint Vincent University has a policy entitled "Accommodation of Students' Religious and Spiritual Observances". This policy requires students with specific religious observances to inform the school within the first two weeks of classes if they wish to receive academic accommodations. This deadline may be extended in "extenuating circumstances". Instructors will confirm the accommodations in writing within five days of receiving the initial request. There is also an appellate procedure if the student disagrees with the final accommodation decision. The academic accommodations listed in the policy include excused class absences, as well as the ability to reschedule an exam or change the due date for an assignment if it conflicts with a religious observance.
Although many Atlantic Canadian universities have adopted proactive policies outlining their approach to religious accommodations, some schools appear to only articulate accommodation policies for students with disabilities.
HOW FAR WILL RELIGIOUS ACCOMMODATION GO?
In 2014, York University experienced significant public backlash after a religious accommodation request seemed to go beyond the bounds of "reasonable" accommodation. A male student enrolled in an online course requested to be exempted from group work with his female classmates based on unspecified religious grounds. The professor originally refused the accommodation, however, the Faculty of Arts later found that, because the student's request would not have a "substantial impact" on the rest of the class, it should have been accommodated.
In public commentary, the professor criticized the school's accommodation decision, arguing that it may allow students to seek accommodation based on potentially discriminatory grounds under the guise of religious freedoms and beliefs.
CASE LAW OVERVIEW
Religious accommodations can take many forms on postsecondary campuses, from spiritual observance accommodations, to modified course requirements, to extracurricular involvement. Freedom of expression is a common argument for student groups seeking accommodations and/or permission from school administrators to advocate more controversial opinions using school forums and resources. When these groups also have religious undertones, there is an interesting dynamic at play between freedom of expression arguments and more subtle considerations of religious liberties
Several Canadian cases have touched on the role of school administrators in accommodating students' freedom of expression on campus where religion appears to be at least one factor in such expression. UAlberta Pro-Life v Governors of the University of Alberta dealt with a pro-life student group that sought to hold a rally on campus. The University allowed the event to proceed, provided the group covered the costs of security at the event. The group challenged this condition, arguing the school violated their freedom of expression by imposing this condition. The court found the school's request reasonable and did not find the decision unreasonably infringed on the group's freedom of expression.
This case was similar to a 2014 Alberta Queen's Bench decision, Wilson v University of Calgary, where members of the campus pro-life group sought to set up a display with graphic images likening abortion to genocide. The school requested the group turn the images inward so only those that wanted to enter the display area could see them. The group refused and the school proceeded with disciplinary action. The group argued against the action based on their right to freedom of expression. On judicial review, the court found the University's disciplinary decision unreasonable because it failed to adequately balance the group's Charter rights.
One of the most significant freedom of religion cases involving a post-secondary institution in recent times is the well-known decision by the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. In that case, the Court found the Law Society's decision not to accredit Trinity Western's proposed law school reasonable. The restrictive covenant imposed by Trinity Western was interpreted as being against the broader public interest mandate of the Law Society with potentially dire consequences to the LGBTQ community. This case showed how courts will balance the infringement on an individual or group's freedom of religion against other relevant statutory objectives, such as ensuring justice for all those that are affected by the standard – in this case, the discrimination concerns against LGBTQ students. This case is an excellent example of how, while freedom of religion is guaranteed under the Charter, such rights are not entitled to absolute protection.
In 2016, the Nova Scotia Court of Appeal also made a ruling on Trinity Western's proposed accreditation with the Nova Scotia
Barristers' Society; however, it differed significantly from the Supreme Court of Canada's decision outlined above. The Court of Appeal upheld the lower court's decision, finding that, as a private university, Trinity Western was not subject to the Charter and was outside the reach of Nova Scotia's human rights legislation.
This decision, especially when contrasted with that of the Supreme Court of Canada, suggests that there is still much uncertainty on the applicability of the Charter to private institutions and that balancing freedom of religion against other interests, such as preventing the discrimination of vulnerable minority groups, is still an evolving area.
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