Derek Ross is the executive director of the Christian Legal Fellowship and legal co-counsel for the CLF’s interventions in the Trinity Western University and Christian Medical and Dental Society cases discussed in this article. Kristopher Kinsinger is an articling student and recent graduate of Osgoode Hall Law School.
Last month, the Assembly of Quebec passed Bill 21, the controversial law banning many government workers from wearing religious symbols of any kind while on the job. While an Angus Reid poll found that two-thirds of Quebeckers support the bill, it has been denounced by human-rights advocates in Canada and around the world for its sweeping incursion on religious freedom and for disproportionately targeting religious minorities. A legal challenge has already been launched by the Canadian Civil Liberties Association and the National Council of Canadian Muslims, and a Quebec court heard preliminary arguments this week.
It’s truly concerning that in 2019 a Canadian province would make it illegal for civil servants to express, in even the most passive way, their religious identity. Equally concerning is the sentiment underlying Bill 21, one that views religion as suspicious and assumes that people of faith are unable to execute their functions impartially and properly. The message of Bill 21 is clear: Even the most benign expressions of religious conviction must be kept out of the public service, and accommodation will only be afforded to employees who are non-religious or who agree to give that appearance. This should alarm believers and non-believers alike, regardless of whether they are directly affected by this law.
It would be dangerous, however, to dismiss the rationale that permeates Bill 21 as a problem unique to Quebec. Many of the familiar arguments offered in support of the legislation have been creeping into Canadian legal and social thought for years: That people are free to hold whatever beliefs they want, but not to act on them; that religion should not be accommodated if it makes others feel uncomfortable or unwelcome; that if a person’s religion is affected at a job in their chosen field, they can just choose to work elsewhere; that believers can express their religion in private, but not once they enter the public square. Increasingly, there is the sense that religion must give way to advance the public interest or to promote shared cultural values.
Bill 21 takes these ideas – some of which may carry a measure of truth, in certain contexts – to a new level. But these principles have been gaining momentum for some time, reflective of a declining commitment to religion as a public good. Indeed, even though the Charter of Rights and Freedoms explicitly guarantees religious freedom and religious equality, decision-makers are increasingly upholding religious-rights violations with little, if any, discussion of the important interests protected by religious freedom, the impact of such infringements on the believer or why such violations might be harmful to the common good.
Indeed, Quebec is not the first province to force believers to choose between faith and vocation. Law societies in Nova Scotia, British Columbia and Ontario, for example, all denied graduates of Trinity Western University’s proposed law school equal admission to the practice of law based on the university’s faith-based code of conduct. A majority of the Supreme Court of Canada upheld the B.C. and Ontario decisions, characterizing them as simply “denying someone an option they would merely appreciate” and observing that “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.”
Earlier this year, Ontario’s highest court similarly affirmed that physicians from multiple faith communities can be forced to help facilitate procedures that violate their ethical judgment, even though doing so would substantially restrict their religious convictions and despite the Divisional Court finding that “no direct evidence that access to health care is a problem caused by physicians’ religious objections”. These requirements were upheld, in part because of concerns that patients might experience “shame and stigma” if exposed to their physicians’ beliefs.
Granted, there are contextual nuances to these cases that make a clean comparison with Bill 21 more difficult. But there appears to be a trend emerging that largely views religion as a matter of personal preference, low on Canada’s list of societal priorities, subject to the perceptions of others and ultimately best kept private. In a culture where such attitudes have become normalized, is Quebec’s passage of Bill 21 all that surprising?
It’s not just Quebec’s government that needs to demonstrate a renewed commitment to religious freedom. Canada as a whole is at risk of losing sight of religion as a social and public good. Unless we are vigilant in defending this fundamental freedom – especially where its accommodation is “messy and uncomfortable” – we will further embolden our governments to enact more policies like Bill 21.
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