When is Discrimination not Discrimination?

Questioning on the federal election English-language debate has given rise to controversy about Quebec’s Bills 21 and 96. (I note I did not watch the debate, but see that several reports of the question and response are similar to each other.) In this post, I’m focusing on Bill 21.

Shachi Kurl, the moderator, asked Bloc Québécois Leader Yves-François Blanchet the following question:

“You denied that Quebec has problems with racism, yet you defend legislation such as Bills 96 and 21, which marginalize religious minorities, anglophones and allophones. Quebec is recognized as a distinct society, but for those outside the province, please help them understand why your party also supports these discriminatory laws.”

CBC Online

By way of “preamble”, my own predisposition is for a secular society, one in which not only is there not an official religion, but one in which religion does not enter official public life. Although not a principle of Canadian life, I believe in the separation of church and state. Yet I believe Bill 21, An Act respecting the laicity of the State, is discriminatory. And I believe that Quebec does recognize that it is (or there is a strong case that it is) it would not have used overrides of the Canadian and Quebec Charters. (Bill 21 is a convenient label, since it has now been enacted.)

I’ve written two Slaw posts on Bill 21. In a post on April 27th of this year, I wrote how Bill 21’s use of section 33 of the Canadian Charter of Rights and Freedoms legitimated prejudice (see “Challenging Bill 21: The Decision on Section 3 of the Charter (Among Other Things“). This post discussed Hak v. Attorney General of Quebec, which determined challenges to Bill 21. In an earlier post, on May 21, 2019 (“Religion and the Law: ‘Respect” or Denial“), I contrasted the relationship between the law and religious belief as reflected in two contexts: the Ontario Court of Appeal decision in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario and Bill 21 .

To return to the impact of the debate question, the response was immediately a vehement condemnation from the BQ leader and from the Premier of Quebec, François Legault. Blanchet replied, “‘Those laws are not about discrimination. They are about the values of Quebec.'” And the next day the Premier announced, “‘To claim that protecting the French language is discriminatory or racist is ridiculous,'” and stated he would not “apologize for defending our language, our values, our powers. It is my duty as premier of Quebec.'” He further maintained that Bill 21 had nothing to do with the rest of Canada. (All quotations from CBC Online.) The Quebec National Assembly called for an apology for the “hostility” shown to Quebec by the question.

In addition, at the debate and subsequently, the three major federal leaders, Prime Minister Trudeau, Erin O’Toole and Jagmeet Singh, weighed in, criticizing the question and maintaining the consortium of media broadcasters responsible for running the debate had to apologize. Trudeau’s and O’Toole’s comments reflected the perspective of Quebec, claiming in different ways that the question was insulting to Quebeckers. However, Singh’s comment took a slightly different angle: “’It’s a mistake to imply that only one province has a problem with systemic racism when it’s a problem everywhere in Canada,’ he said in an e-mail statement on Wednesday. ‘Implying that it’s only in one province hurts the work being done to fight systemic racism.’” (The Globe and Mail here.)

Let me say up front that I fail to see how Bill 21 is not discriminatory, on religious and gender grounds. And I do not see how describing it as reflecting Quebec’s values does not nevertheless make it discriminatory or, worded differently, automatically make it non-discriminatory.

Bill 21 prohibits public sector workers, such as teachers, police officers, legal aid lawyers and others, from wearing religious symbols and clothing, visible or non-visible, such as crosses, turbans, hijabs or headscarves (headscarves, I note, may be worn by both Muslim and Jewish women, although the former have been the focus of critics of the law) or kippahs. It is discriminatory because it specifically targets people whose religion requires them to wear a symbol or a type of clothing and because it disproportionately affects women who wear Muslim dress.

A religious symbol, within the meaning of this section, is any object, including clothing, a symbol, jewellery, an adornment, an accessory or headwear, that

(1) is worn in connection with a religious conviction or belief; or

(2) is reasonably considered as referring to a religious affiliation.

An Act respecting the laicity of the State, Section 6

Note that the “clothing, symbol, jewellery, adornment, accessory or headwear” does not actually have to reflect the wearer’s belief; it is enough that other people think it does. (According to Quebec’s Minister of Justice, as ccited by Justice Blanchard in Hak, Bill 21’s prohibition does not encompass beards or wedding rings.)

Perhaps ironically (or not, depending on one’s point of view), Bill 21 explains that “[t]he laicity of the State is based on the following principles”: these are not only two that reflect the underlying premise of Bill 21 (“the separation of State and religions” and “the religious neutrality of the State”, but also “the equality of all citizens” and “freedom of conscience and freedom of religion”. Its Preamble also states, “the Québec nation attaches importance to the equality of women and men”.

Some commentators justify the prohibitions in Bill 21 by casting back to the dominance of the Roman Catholic Church in Quebec and, following the throwing off this yoke, the desire not to repeat religious expression in public life. Others have argued that for people of particular religious beliefs, especially those who have immigrated from countries where religion was oppressive, being served by people wearing religious symbols might be intimidating.

Mario Polèse, for instance, asks why requiring civil servants not to display their religious beliefs is any different from requiring them to not to display their political convictions. He quotes another commentator, Boucar Diouf, in providing examples of the need to show that civil servants (at least outwardly, one might add) are not prejudicial: “’How would an immigrant of Palestinian origin, contesting a conviction, feel in front of a judge wearing a kippah? Inversely, how would a young driver wearing a kippah feel faced with a policewoman wearing a hijab who just gave him a ticket?’” Polèse ends his opinion by saying he would allow “female teachers keep their hijabs”. (See “Quebec’s Bill 21: Is there room for more than one view of religion in Canada?” here.) (I note that Google’s translation of Diouf’s La Presse article adds the adjective “questionable”: “a questionable ticket” [see here]).

The main reason for Bill 21 is that a secular society does not allow religious expression in association with the state. Public servants, on this view, represent the state. This argument would be stronger if the state required people to wear religious symbols rather than allowing a wide range of them.

However justified Bill 21 may be, however, doesn’t change the fact that it is discriminatory. We try to avoid saying certain treatment is discriminatory in different contexts. Thus affirmative action programs under section 15(2) of the Canadian Charter of Rights and Freedoms avoids saying these programs are discriminatory against majority groups; rather, the guarantee of equality (treatment without discrimination) under section 15(1) “does not preclude” them. This is a way of justifying the different treatment of a particular group because that treatment is required to help remedy inequality.

The Quebec government and National Assembly were not prepared to justify the denial of people’s religious expression. They immunized Bill 21 in two ways: they made it immune from the Canadian Charter’s freedom of religion and equality rights (and other not clearly applicable provisions) through application of the section 33 override; and they included a provision that sections 1 to 38 of the Quebec Charter of Human Rights and Freedoms would not apply. Furthermore, Bill 21 amends the Quebec Charter. It adds the following in the Preamble: “Whereas the Québec nation considers State laicity to be of fundamental importance”. And it amends section 9.1 to add the term “State laicity” after “democratic values” so that it now reads as follows: “In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, State laicity, public order and the general well-being of the citizens of Québec.”

As a result of these provisions, the judge determining the challenge to Bill 21 under the Canadian and Quebec Charters was unable to act on his finding that the Act is discriminatory. (He did find it operative in a limited way that is difficult to sustain.) In Hak, as I explained in my April 27th Slaw post, Justice Blanchard did not mince words in expressing his views of Bill 21:

[68] There is no doubt that [Bill] 21 has serious and negative consequences for all people who wear religious symbols in public. In general, on the one hand, all those who hold a job covered by [Bill] 21 find themselves stuck in their current position since they cannot change it under penalty of losing the benefit of the anticipation clause, unless [they] decide to no longer wear religious symbols in public.

[ 69 ] On the other hand, all these people who aspire to one of these jobs find themselves faced with the following dilemma: either they act according to their soul and conscience, in this case their beliefs, or else they work in the profession of their choice. It is easy to understand that this is a cruel consequence which dehumanizes the people concerned.

[ 70 ] For many, the legislator sends the explicit message that their faith and the way they practice it do not matter and that it does not carry the same dignity or require the same protection on the part of the State. For them, [Bill] 21 postulates that there is something fundamentally wrong or harmful with religious practices, especially some of them, and that the public must be warned. Thus, it conveys an explicitly exclusive message to people who are told that they cannot participate fully in the public institutions of the State only because of their intimate convictions.

A secular state may take different routes to establish its bona fides. It may implement the concept of “religious neutrality” in related ways.

The state may take a “hands-off” approach to religion, permitting all forms of religious expression (except where it contravenes other significant requirements and then it would be limited only to the extent necessary), but not assisting or promoting it. It would neither favour a “state religion” nor would it prohibit, on the one hand, or promote, on the other, any kind of religious practice or expression. Or it could take the view that Quebec has adopted: to deny the expression of religion in certain contexts; it would be neutral because it would not permit any form of religious expression in those contexts. (One might argue on this view that denying the right to wear symbols or clothing of a particular religion and not others is what would be discriminatory.)

However, there is a significant difference between promoting activity, religious or otherwise, and permitting it to function without aligning it with the state. In the case of public servants wearing religious symbols, in allowing the expression of all religious symbols (as opposed, say, to mounting a cross on the wall of the government office where service is provided) or no religious symbols, the state is acting neutrally. And because it is not aligned with any particular religion, it is consistent with a secular state.

Query whether providing a room for prayers would change this equation. I think there is an argument that it would. Here the state is acting in a positive manner. Query whether allowing men to work separately from women because the religion demands it. This would also require positive action by the state, would be discriminatory and would, I’d argue, not be consistent with state secularism.

Assume, though, that a secular state really does require the absence of personal religious expression because the very presence of the religious symbol or clothing links back to the state. As does any restriction on religious expression, such as requiring photos on drivers’ licences, even though for a certain religious group this is a contravention of their religious belief, it must be justified. It is recognized as discriminatory or a breach of freedom of religion, but that is not the end of the story: there may be significant state or public interests that justify the restriction (or not). (See the 4-3 Supreme Court of Canada decision in Alberta v. Hutterian Brethren of Wilson Colony upholding this requirement.)

Certain restrictions on religious expression may also have discriminatory effects on other grounds, in the case of Bill 21, it is argued, on the basis of gender because of the number of women wearing Muslim headscarves or hijab, especially in schools (see, for example, the Canadian Women’s Foundation written statement on Bill 21 here).

State justification of the prohibition would have to show that the significance of having no religious presence in the public sector workplaces, even though the state is otherwise passive in simply permitting it, is greater than the need for people for whom the religious expression is important to their beliefs to make a choice between their employment and their religious expression. (In a slightly different context, a Sikh doctor did make the “hardest thing [he] ever did”: he shaved his beard in order to wear a mask to treat Covid-19 patients [see McGill Reporter here]. Of course, under Bill 21, his turban would otherwise pose a problem, not his beard, and, one hopes, this will be, or was, temporary.)

This is not an impossible case to make. But it could be somewhat messy. It is not clear the extent to which some of the wearing of religious symbols and clothing is actually a religious tenet, but a cultural practice, for example, or whether the wearing of a particular symbol or clothing is a requirement for some sects of the same religion and not for others. To what extent is it something that is considered more significant in some contexts than in others, with the workplace being a discretionary option? There are no simple answers to these questions and the answers that do exist very from religion to religion, sect to sect. This, presumably, would be worse than the blanket denial, if the state is insistent on denial.

Thus the route taken by Quebec is in an important respect the easiest route: remove Bill 21’s prohibition from a difficult justification or from failure of justification. (And, it must be said, from decision-making by a Supreme Court that Quebec would likely see as lacking understanding of Quebec.) And so the answer: apply section 33 of the Canadian Charter and override and amend the Quebec Charter. Doing so, however, is a tacit acknowledgement that the law does discriminate.

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