PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation REASONABLE ACCOMMODATION FOR RELIGION OR BELIEF IN CANADA In the so-called Simpson-Sears case, an employee became a member of the Seventh-Day Adventist Church and began observing strictly the Sabbath from sundown on Friday to sundown on Saturday. She thus informed her employer that she could no longer work on Saturdays, giving rise to a dispute. Ruling in the case, the Supreme Court of Canada focused on the interpretation and application of Canadian antidiscrimination legislation. The Court found indirect discrimination and deemed that a corresponding duty of reasonable accommodation arose, done without imposing “undue hardship” on the employer or other accommodating entity.1023 A high-level 2008 report set out the conditions for understanding the “undue hardship” doctrine under Canadian law in cases concerning reasonable accommodation – termed here personalization – in medical contexts: 1. A request for the personalization of care must not run counter to clinical judgment, best practices and the professional code of ethics and must be evaluated in light of clinical urgency. 2. A request for personalization must not run counter to safety rules, e.g. the prevention of infection, risk management, and so on. 3. A request for personalization must not engender undue costs or costs that exceed organizational limits from a human, physical and financial standpoint. 4. A request for personalization must not be harmful to the rights and freedoms of other users and interveners.1024 4. Opting out in the field of health A related matter concerns opting out of health procedures. Certain religious minorities have doctrinal requirements not to take part in certain health procedures, including blood transfusion, vaccination, surgery and, in some cases, any form of mainstream medicine. In a case concerning the refusal by the Russian Federation to register a Jehovah’s Witnesses community, the European Court of Human Rights recognized, in deeming the ban discriminatory and therefore illegal, that: the refusal of potentially life-saving medical treatment on religious grounds is a problem of considerable legal complexity, involving as it does a conflict between the State’s interest in protecting the lives and health of its citizens and the individual’s right to personal autonomy in the sphere of physical integrity and religious beliefs.1025 Nevertheless, in overturning the ban on the Jehovah’s Witnesses community, the Court held: The ability to conduct one’s life in a manner of one’s own choosing includes the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the individual concerned. In the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment … would interfere with his or her right to physical integrity and impinge on the rights protected under Article 8 of the Convention … The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to the principles of self-determination and personal autonomy. A competent adult patient is free to decide, for instance, whether or not to undergo surgery or treatment or, by the same token, to have a blood transfusion. However, for this freedom to be meaningful, patients must have the right to make choices that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices may appear to others. Many established jurisdictions have examined the 148 1023 Supreme Court of Canada, Ontario Human Rights Commission and O’Malley (Vincent) v. Simpsons-Sears [1985] 2 SCR 536. 1024 Gérard Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation – Abridged Report (Quebec, Government of Quebec, 2008), pp. 52–53. Available at https://red.pucp.edu.pe/ridei/wp-content/uploads/biblioteca/buildingthefutureGerardBouchardycharlestaylor. pdf. 1025 European Court of Human Rights, Jehovah’s Witnesses of Moscow and others v. Russia, Application No. 302/02, Judgment, 10 June 2010, para. 134.