Are Canada’s Christian statutory holidays discriminatory?

Question may loom larger in coming years, researcher says

Christian holy days like Christmas and Easter are likely to remain statutory holidays in Canada in the near term, a legal scholar says—but the question of accommodation for non-Christian religious holidays could become more important in the future as the country welcomes half a million immigrants each year.

Paige Thombs, an associate fellow at the University of Victoria’s Centre for Studies in Religion and Society and PhD candidate in law, spoke to the Anglican Journal about a discussion paper on religious intolerance published in October 2023 by the Canadian Human Rights Commission (CHRC). The paper caused a political stir in the House of Commons— specifically, a passage that called statutory holidays linked to Christianity an “obvious example” of “systemic religious discrimination.”

In a statement from the paper that the House of Commons unanimously voted to denounce, the CHRC said, “Discrimination against religious minorities in Canada is grounded in Canada’s history of colonialism. This history manifests itself in present-day systemic religious discrimination. An obvious example is statutory holidays in Canada.

“Statutory holidays related to Christianity, including Christmas and Easter, are the only Canadian statutory holidays linked to religious holy days. As a result, non-Christians may need to request special accommodations to observe their holy days and other times of the year where their religion requires them to abstain from work.”

Thombs says while there is no easy answer to the question of statutory holidays, she cannot recall a single court case on religious freedom in the last 20 years that revolved around them.

“You’re going to get religious people that are just like, ‘Meh, my employer is really flexible, I can make up the time,’ and then you may get other people that really find it extraordinarily oppressive and discriminatory,” Thombs says.

“I think many people just accept the status quo,” she adds. For some people in the religious minority who face larger issues of discrimination, she says, “it’s possible that there’s bigger fish to fry than a statutory holiday.”

However, with growing numbers of immigrants to Canada, including many non-Christians such as Muslims and Sikhs, Thombs says conversations about statutory holidays could become more important. In November 2022, the federal government announced its intention to bring in almost 1.5 million new immigrants to Canada by 2025. “If we continue this trajectory, those numbers [of non-Christians] are only going to get bigger,” Thombs says. “Are things going to have to change? I think so. I hope so.”

Paper misinterpreted: professor

Bloc Québécois Leader Yves-François Blanchet brought up the CHRC’s statement in the House of Commons Nov. 29, asking, “According to the prime minister, is Christmas racist?” The next day, the House of Commons voted to denounce the CHRC’s statement.

In response, CHRC interim chief commissioner Charlotte-Anne Malischewski published an opinion piece stating that the paper had been misinterpreted. “Of course, Christmas is not racist,” Malischewski said.

“Our discussion paper explains that, based on current Canadian law, providing a statutory holiday for one religion, and not providing reasonable accommodation for other religions may be considered discrimination,” she said. “It simply mentions Christmas as an example of a religious holiday that is also a statutory holiday.”

David Seljak, professor of religious studies at the University of Waterloo, agrees the CHRC statement had been misinterpreted.

“What the paper says is that Canada was created as a fundamentally Christian country,” Seljak says. “And even though we’ve moved away from that in terms of adopting a broader culture of religious tolerance and ethno-racial tolerance in our multiculturalism policies and practises, there are these remnants of our Christian past, of our colonialist past. It just seems like it’s impossible to deny that.”

Along with Christmas and Easter being statutory holidays, Seljak points to other institutional aspects of Canada’s Christian heritage, such as Sunday being a day of rest. In Ontario, this was institutionalized under the Lord’s Day Act, which banned commercial activity on Sundays—until 1985, when the Supreme Court of Canada struck down the law as unconstitutional.

Nevertheless, Seljak says, the most common day of pause remains Sunday, which is also the day most Christians meet for worship services. Other religious communities can therefore face challenges Christians do not.

“A Buddhist community may want to meet on the date of the Buddha’s birthday,” Seljak says. “But they would postpone the celebration to the following Sunday because that’s when they can meet as a community, when most of them have a pause from their working life.

“It’s just structural. There’s no evil intention, there’s no malice, there’s no intention to discriminate. But it’s part of the Canadian social structure that is a legacy of how Canada was created.”

Reasonable accommodation

Seljak, who served as a consultant to the Ontario Human Rights Commission (OHRC) in 2015 when it reviewed its policy on preventing discrimination based on “creed” or religious freedom, says right to reasonable accommodation of religious practices is the law of the land.

The Supreme Court of Canada established this precedent in a 2004 case which allowed orthodox Jews living in a Montreal condominium to construct succahs—temporary huts to mark the Jewish festival of Sukkot—on their balconies even though this was against condominium rules. The court ruled that any request based on religious belief or practice must be accommodated to the point of “undue hardship.” An example of the latter, Seljak says, might be a small business with one or two employees that cannot accommodate an employee’s request to take religious holidays.

Thombs says requests for reasonable accommodation of religious holidays tend to be granted, since an employee who cannot take a day off to mark a holy day could launch a complaint and any tribunal would likely decide in their favour.

But Thombs points to a key difference between Christians and non-Christians celebrating religious holidays, which she says is discriminatory: when non-Christian workers want a holy day off, they generally need to take it as a vacation day.

A “relatively straightforward” solution, she says, would be giving all workers a set number of paid days off in order to observe their religious practices. However, Thombs foresees “a tremendous amount of pushback” to any attempt by government to remove Christmas, Easter and Good Friday as statutory holidays.

The 2021 census found 53.3 per cent of Canada’s population identify as Christian, down from 67.3 per cent in 2011 and 77.1 per cent in 2001. By comparison, less than five per cent identified as Muslim, the second most commonly reported religion in Canada, and 34.6 per cent identified as having no religious affiliation.

While the census said immigration is one of the key drivers of non-Christian religions in Canada, Christianity is still by far the most popular religious affiliation among immigrants. In 2021, 47 per cent of all immigrants and 39.7 per cent of recent immigrants—those who arrived between 2016 and 2021—identified as Christian. Meanwhile, 23.7 per cent of all immigrants and 21.2 per cent of recent immigrants had no religious affiliation; 13.4 of all immigrants and 19.6 per cent of recent immigrants identified as Muslim.

“I have certain sympathy for the conservative argument about keeping Christmas and Easter holidays as they are … For good and for bad, Canada was created in a certain way,” Seljak says. “I think many people have become self-righteous about Canada as a secular society, about the degree to which it has overcome the problems of religious intolerance and discrimination as if secularism has cured everything,” he adds.

“Not only has it not solved everything, it’s introduced its own kind of discriminatory practises in a rigid secularism,” Seljak says. In his OHRC report on creed, Seljak said many Indigenous people have faced systemic barriers when practicing Indigenous spirituality, for example by employers that believed workplaces should be “secular.”

“If we wanted to take that hard line … we would ban Indigenous healing practises in our health-care system, which we’ve actually introduced and expanded,” Seljak says.