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Publicly Available Published by De Gruyter June 29, 2016

Squaring the Circle of Multiculturalism? Religious Freedom and Gender Equality in Canada

  • Ayelet Shachar EMAIL logo

Abstract

The Canadian Charter of Rights and Freedoms is globally unique in that it includes explicit commitments to the values of multiculturalism and gender equality. Section 27 of the Charter provides that: “[It] shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians,” whereas section 28 states that: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” The Canadian experiment (as I will call it) offers us a rare, living laboratory in which a thriving constitutional system searches for legal and institutional pathways to addressing seemingly incongruous demands, obligations, rights, and protections. This article identifies a range of concrete legal responses developed and articulated by Canadian judges and other policymakers in response to claims for fair inclusion raised by members of religious minority communities. Contributing to ongoing theoretical and legal debates, I will conceptualize three variants of such fair inclusion claims. I will then assess what the Canadian multicultural experiment can teach other comparable countries about principled and pragmatic responses to the challenge of “living together” in shared spaces such as workplaces, schools, courthouses, and during citizenship ceremonies. The discussion will then explore the promises and pitfalls of a jurisprudential approach that resists the hierarchy of rights formulas, and tries instead to cover all grounds so as to neither erase diversity nor sacrifice equality.

Introduction

In a series of previous articles, I have developed the distinction between fair inclusion and privatized diversity. [1] Fair inclusion refers to various legal measures designed to permit individuals to participate fully in the public spaces shared among democratic citizens, while expressing, if they wish to do so, certain religious (or other group-based) identity markers. Privatized diversity refers not to claims for inclusion in the wider society, but to demands for insulation, if not outright immunization, from the purview of the legal order enacted by the state, in the name of promoting a community’s unique ways of life in the face of an “encroaching” constitutional order. [2] The centrifugal and centripetal pulls of fair inclusion and privatized diversity capture some of the most salient and difficult challenges faced in recent years by countries committed to recognizing both diversity and equality. [3] The oft-noted potential strain between these aims has burst to the fore of the debate and has kept philosophers, legal theorists, ethicists, social scientists, think tanks, and policymakers (to mention only a few) hard at work. Unlike privatized diversity, which seeks to create a binding normative and legal nomos for minority community members that is potentially beyond the reach of the state’s “higher law,” fair inclusion claims involve promoting the participation of those once-excluded from or discriminated against in mainstream institutions. As such, considerations of fair inclusion are intertwined with struggles to overcome, or at least mitigate, entrenched power and status inequalities; this raises important questions about how these mainstream institutions may, could, or ought to change in a more diverse society. Instead of exploring these conundrums in the abstract, I identify a range of legal responses developed and articulated by judges and other policymakers in Canada, and work from the bottom up to conceptualize in this article three branches or variants of the family of fair-inclusion claims. In developing these categories, I also elaborate how they might practically operate in a society that is widely recognized as one of the most accommodating jurisdictions in the world of “new constitutionalism,” and contrast the Canadian multiculturalism experiment with competing visions of citizenship and membership as practiced and articulated by comparable countries. [4]

The Canadian Charter of Rights and Freedoms is globally unique in that it incorporates both of these commitments using interpretive provisions focusing on multiculturalism and gender equality. [5] Section 27 provides that: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians,” whereas section 28 states that: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” [6] The Canadian experiment (as I call it) offers us a rare, living laboratory in which a thriving constitutional system searches for legal and institutional pathways to addressing the seemingly intractable demands, obligations, rights, and protections endowed by sections 27 and 28. The Canadian experiment is fascinating to explore because it attempts to give meaning to the implementation of both values. It exposes the promises and pitfalls of a jurisprudential approach that resists the hierarchy of rights formulas, and tries instead to cover all grounds so as to neither erase diversity nor sacrifice equality. No other country has officially enshrined both multiculturalism (section 27) and gender equality (section 28) as interpretive provisions that reflect the “broad directions” and “aims” of its constitutional order. [7]

To fully comprehend the importance of the Canadian experiment, we need to place it in a broader context. In the post 9/11 era, considerations of national security and public order have led to a major rethinking of the relationship between minority and majority communities in many parts of the world. This is perhaps most visible in Europe, where attempts to define the scope, limit, and justification for recognition—and increasingly, restriction—of visible public expressions of minority religious identity now represent some of the most charged political and legal issues in public debate. [8] Perhaps no statement better captures the general shift in attitude than the famous declaration by Germany’s Chancellor Angela Merkel that multiculturalism (or multikulti as the Germans would put it) has “utterly failed.” [9] In some countries, such as the United Kingdom, there is a renewed emphasis on fostering social cohesion and promoting shared values and a common identity (however difficult these terms remain to define). These policy changes make their mark in and through the political arena; but we have also witnessed the rise of a legal battlefield of sorts, where courts – both domestic and transnational – have repeatedly been called upon for the difficult task of defining the place of religion in the public sphere. [10] Some of the most contested struggles over culture and identity nowadays tend to involve religion. To this we must add the fact that most national constitutions (and supranational human rights conventions) include a protection of religious freedom, making it strategically beneficial to couch identity claims under the rubric of religious freedom, even though the “claims of culture” or “politics of diversity” typically bring to the fore combined elements of religion, culture, tradition, and so on. [11] When gender is brought into the mix, we find the emergence of volatile legal controversies. The debates surrounding the hijab (a head cover worn by some Muslim women) and the niqab (a face-veil that only leaves the eyes visible) offer concrete examples of this larger trend; even Canada has not escaped these debates. [12] For women wishing to express in public certain aspects of their (non-dominant) religious or cultural identity while enjoying other rights and protections they are entitled to as equal citizens, the combination of perennially charged questions of “who we are” – or what values we share as co-members of a political community – with the return of religion to center stage may, in a bitterly ironic twist, place more pressure on them to assert their “loyalty” to both the minority community and the larger political community to which they belong. Today, some of the most contested “rounds” of legal debate generated by the hijab and the niqab, or their banning through governmental action, occur precisely at the moment when the visibly marked “Othered” woman is seeking access to public spaces, receipt of governmental services, or formal inclusion in the body politic. The intersection here of the politics of belonging with gender and religion conflicts turns women who cover into symbolic and potentially also legal “markers” of the boundaries of inclusion/exclusion, delineating the “cusp of membership,” ultimately explaining the critical role their attire and the female body more generally play in heated debates about citizenship, human rights, and collective identity. [13] On a global scale, however, Canada remains an especially strong supporter of multiculturalism and diversity in a world in which support for these policies has been declining, particularly in Europe. [14]

This new reality raises major challenges that law and political theory must tackle in the early twenty-first century, most foundational among these are questions such as: What principles and guidelines can, and should, guide how people “live together” in free and democratic societies that are ever more diverse? Is it possible for courts and legislatures to define an expansive scope of protection for both religious freedom and gender equality, simultaneously? What are the justifiable limits or best techniques for addressing cases of direct conflicts between such values that, at least in the Canadian context, hold equal footing in the constitutional structure of rights protection? And how much weight should be given to context—historical, circumstantial, power-relational—in determining the claims of members of non-dominant minority communities as compared to the interests of members of majoritarian communities? When defining seminal concepts such as neutrality, the separation of state and religion, and equal opportunity in our increasingly diverse societies, what is the role of the state in such charged disputes? Is it always impartial and even-handed as liberal and democratic theory would lead us to expect, or potentially subject in practice to what public choice theorists have called “capture” by special interests, political vectors, or veto groups? [15]

In the following pages I begin to address these weighty and inevitably sensitive quandaries, exploring what the Canadian experiment can teach us about principled and pragmatic responses to the challenge of “living together” in shared spaces such as workplaces, schools, courthouses, and during citizenship ceremonies. More specifically, I distinguish and articulate three variants of the fair-inclusion family of claims, which are typically brought to the attention of the justice system by those who seek to change the status quo or acquire a remedy for violation of a protected right or interest: 1) freedom from coercion, 2) exemption and accommodation vis-à-vis public authorities, and 3) conflicting rights among individuals. [16] The discussion reveals some of the unique and successful features of Canada’s multicultural experiment, as well as the deep and as of yet unresolved challenges raised by this grand social and legal experiment in accommodating diversity with equality. Given the renewed centrality of the construction and reconstruction of religious women’s “difference,” I also provide several examples that illustrate just how volatile the inclusion-exclusion line is in reference to full and equal membership, even in diversity-accommodating Canada. But before we turn to these riveting issues, it is useful to step back in time, roughly half a century ago, in order to acquaint ourselves with the genesis of the invention of Canadian multiculturalism as an official government policy—the first in the world. [17]

Fair Inclusion I: Non-Coercion by the Majority

The “multi” in Canadian multiculturalism represents an explicit rejection of the once unquestioned approach of privileging the dominant majority culture(s) while relegating minority communities to a marginalized, second-class position. In Canada, the government policy of multiculturalism, articulated in 1971 and predating the Charter, rested on a combination of empirical and normative justifications for rejecting mono-or bi-culturalism: “In the face of this [country’s] cultural plurality there can be no official Canadian culture or cultures,” resoundingly stated a special joint parliamentary committee designated with the task of developing Canada’s new constitutional bill of rights, the Canadian Charter of Rights and Freedoms. [18] As part of this effort, a new vision was crafted of a “pluralistic mosaic,” promoting “equal respect for the many origins, creeds and cultures” that form Canadian society. [19]

In the post-Charter era, the earliest judicial pronouncement on section 27 is found in the landmark decision of R. v. Big M Drug Mart Ltd., in which the Supreme Court of Canada struck down the Lord’s Day Act, a federal “Sunday closing law” prohibiting businesses from opening on Sunday, effectively protecting the sanctity the Christian Sabbath. [20] In an oft-cited paragraph of that decision, the Court stated that: “What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not … be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of the ‘tyranny of the majority.’” [21] This last point is crucial. The majority of Canadians may accept Sunday as the Lord’s Day, but this does not represent the perspective of religious minorities in Canada, be they members of the Jewish faith, Sabbatarians, Muslim Canadians, agnostics, or those with no theistic belief. As Dickson J. (as he then was) said, speaking for the Court: “To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians.” [22] The Lord’s Day Act, continues the Court, “takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non-believers alike.” [23] It is at this stage of the analysis that section 27 is brought into the discussion: “to accept that Parliament retains the right to compel universal observance of the day of rest preferred by one religion [the dominant majority religion] is not consistent with the preservation and enhancement of the multicultural heritage of Canadians.” [24]

The pronouncement in Big M that direct compulsion is forbidden is now deeply entrenched in Canadian law. [25] The Supreme Court of Canada recently referred to cases involving religious compulsion as “straightforward”; they fail the test of constitutionality without even triggering a balancing or proportionality analysis. [26] It is worth noting, however, that what is considered straightforward in Canada is not necessarily seen as such elsewhere. Unlike the Supreme Court of Canada, other distinguished courts (whether national or supranational) have been reluctant to declare practices and policies enforcing majoritarian values as a “form of coercion inimical to the Charter [or other human rights instruments] and the dignity of all non-Christians.” [27] Consider, for instance, the much-discussed Lautsi decision handed down by the Grand Chamber of the European Court of Human Rights (“ECtHR”), the apex judicial body in the European human rights system, entrusted with interpreting the provisions of the European Convention on Human Rights. [28] In Lautsi, the Grand Chamber of the ECtHR overturned an earlier unanimous decision by the Chamber. In it ruled that given the wide variety of approaches adopted by European states regarding the place of religion in public schools, the Italian regulations requiring the prominent display of the crucifix in every classroom in state-run schools fall within the margin-of-appreciation owed to domestic authorities to “perpetuate a tradition” – here, the tradition of the majority religion (Catholicism) in Italy. [29] In effect, this decision means that children from different faiths, backgrounds, and ways of life, including non-Christians and those professing no religion, will continue to be educated under the cross—literally—in Italian public schools.

The Lautsi decision has been criticized as taking a pro-majority stance in the “cultural wars currently raging in Europe [in which] the relationship between the majority and minorities in society, the extent of their respective claims to shape the social, cultural, and intellectual environment, and the role of the state in their tug-of-war are the source of recurring tensions.” [30] Under the non-coercion variant of the fair inclusion framework informing the Canadian multiculturalism experiment, a decision like Lautsi would be objectionable in that it upholds, rather than dismantles, the “compulsory display of a symbol of a particular [majority] faith in the exercise of public authority,” thus breaching the duty of neutrality and fair inclusion as non-coercion. [31] Recall that s. 27 instructs that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians,” not the preservation and enhancement of the heritage of a majority tradition or community in Canada. By contrast, the Lautsi decision reflects the continued privileging of the majority tradition and the use of the force of the state to inculcate certain values to a “captive audience” in and through a quintessential public institution: the public school. [32] In lieu of multiculturalism, it endorses monoculturalism by granting permission to display a “primarily religious symbol” (as the Strasbourg Court put it)—the crucifix—in every state-run classroom where attendance is compulsory regardless of religious convictions, or lack thereof.

As comparative constitutional scholars have rightly observed, legal disputes such as Lautsi have come to fore because the ECtHR itself has become a core arena where “some of the most challenging debates around European legal pluralism [now] take place, and its case law has centrally contributed to shaping the terms of such controversies.” [33] Moreover, it is increasingly recognized that the legal arena has become a strategic space for not only exploring the “nature of religious communities, their relationship to state institutions, and the place of minority religious communities in society,” but also in which to re-examine “the place, role and rights of the ‘Christian majority’ in Europe.” [34] These are highly charged issues, which have become intertwined with a deepening “cultural anxiety” about national identities and shared values that are perceived to be under threat and in danger of being “overwhelmed” by the members of minority religious communities, thus feeding into a dangerous narrative of “nouset lesautres,” creating a binary, sum zero dynamic of “us” vs “them.” [35] Canada is not immune to these pressures, but they have been slower to take hold given that a fundamental legacy of multiculturalism has been the dismantling of majoritarian dominance and its replacement with a more diverse and inclusive “social imaginary” constructed in the name of, and in turn affirming, the commitment to equal citizenship as safeguarding diversity-in-unity. [36]

Fair Inclusion II: Accommodation and Exemption

The legal commitment to non-coercion can be thought of as a concrete articulation of a broader normative principle and policy: the removal of negative background conditions, statutes or regulations that may appear or purport to be neutral but in fact are “implicitly tilted towards the needs, interests, and identities of the majority group.” [37] Beyond it lies a vast range of positive, concrete, and often case-by-case exemptions and accommodations from otherwise generally-applicable laws, rules, regulations and other binding governmental policies. As we have just seen, refraining from coercive use of the power of the state to privilege the tradition(s) of the majority is anything but trivial.

No state is an island. And no state can be regarded as a tabula rasa. Each society makes collective choices about its official language(s), public holidays, and national symbols, choices that lead to some members feeling more welcome than others. The exemption and accommodation concerns of fair inclusion are designed to overcome, or at least mitigate, the unfair “burdens, barriers, stigmatizations, and exclusions” that members of non-dominant communities accrue as a result of their minority status, or by virtue of not having had an equal voice and opportunity to shape the “rules of the game” in the first place. [38] In the legal arena, the exemption and accommodation branch of fair inclusion refers to a wide range of measures that are created so that religious and other minorities may “express their cultural [or religious] particularity and pride without it hampering their success in the economic and political institutions of the dominant society.” [39] An illustration of the principle of fair inclusion in operation in the Canadian Charter context is found in the Multani case. [40] This legal drama involved an 11-year-old Sikh immigrant, Gurjab Singh Multani, who was enrolled in a public school in Quebec. The Court considered whether the boy should be allowed to carry a kirpan (a ceremonial dagger) in accordance with his beliefs, even though this created potential safety hazards and led to an apparent conflict with the school board’s prohibition on weapons and dangerous objects. Indeed, the categorization of the kirpan as either a prohibited weapon (as the school board claimed) or an important religious symbol (the position of the student, his parents, and the interveners on behalf of the Sikh community) was at the heart of the dispute.

A decision to universally ban the kirpan, the Court ruled, was not the least drastic means by which to address the limited potential harm that might ensue, especially in light of the sincerity of the student’s religious beliefs. The Court thus held in favor of Multani, providing a resounding statement of the fair-inclusion vision of human rights and equal citizenship:

The argument that the wearing of kirpans should be prohibited because the kirpan is a symbol of violence and because it sends the message that using force is necessary to assert rights and resolve conflict must fail. Not only is this assertion contradicted by the evidence regarding the symbolic nature of the kirpan, it is also disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism. [41]

Translating this commitment into a social reality is, of course, a major challenge. In Multani, the Court sought to rein in the absolutist approach of a total ban, cultivating, instead, the constraint and moderation that informs its balancing approach that seeks to mitigate tensions between competing values and interests. The trajectory of searching for such a delicate balance is also manifested in the Syndicat Northcrest v. Amselem decision, [42] in which the Supreme Court of Canada held that a condominium association’s refusal to permit Orthodox Jewish unit co-owners to install sukkahs (exterior temporary structures that some Jews erect during the Jewish holiday of the Feast of the Tabernacles) on their balconies unjustifiably breached their rights to pursue their religious beliefs. [43] In the decision, religious freedom is conceptually linked to broader themes of respect for minority communities in a diverse society. As explained by the Court: “An important feature of our constitutional democracy is respect for minorities, which includes, of course, religious minorities. Indeed, respect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy.” [44]

For the purposes of our discussion, the Amselem decision is significant not only because it places an obligation to respect cultural and religious difference on a non-state actor, but also by virtue of its acknowledgement of diversity within the accommodated minority. This last point is connected to the Court’s holding that “the State is in no position to be, nor should it become, the arbiter of religious dogma.” [45] While courts and other state officials are not in a position to rule on the validity or veracity of any given religious practice, courts are “qualified to inquire into the sincerity of a claimant’s belief.” [46] Insisting on sincerity of belief, however, is not the same as requiring a person to prove that his or her religious practices are supported by a mandatory doctrine of faith. In the sukkah dispute, the focus on sincerity of belief permitted the claimant to vindicate a religious freedom claim against the condominium in which he owned a unit, despite the fact that expert testimony was divided (between Jewish Halakhic and contemporary sources) on the question of whether the said practice was at all mandatory according to the relevant tradition. [47]

This concentration on the sincerity of a claimant’s belief opens the door, at least theoretically, for those who follow a given religious tradition to argue that a more gender-egalitarian interpretation of their tradition is part of (rather than opposed to) their state-protected religious freedoms and the promotion of multiculturalism, even if such an interpretation is not a dominant or established tenet of the tradition. It allows the court to avoid becoming the arbiter of religious dogma while permitting individuals greater freedom to shape the boundaries of their claim for religious freedom. [48] For “minorities within minorities” such as religious women, both members of a faith community and equal citizens of the state, who seek both recognition for their multilayered identity and the full protection and benefit of the law—such a shift could pave the way for articulating an intersectionist position cutting across overlapping and possibly competing sets of relations and obligations. The Court’s decision to focus the religious freedom analysis on practices or beliefs that have a nexus with religion (irrespective of whether those practices or beliefs are required by official religious dogma) in conjunction with the sincerity of that belief, could thus prove empowering for women and other minorities seeking to challenge entrenched intra-group power relations, or practices and traditions, that are entangled with state action.

Cases like Amselem and Multani are brought by litigants who seek fair inclusion in public spaces and institutions, such as schools, streets, workplaces, etc., but without losing identity-based markers that they see as important dimensions of their cultural or religious based affiliations. [49] Of course, there have been instances where the Supreme Court of Canada has refused to vindicate the claims of religious minorities, but on the whole, it remains undisputed that Canadian courts have adopted a more generous interpretive approach to cultural and religious recognition than the ECtHR and other comparable national and supranational tribunals. [50] This branch of fair inclusion demands more than mere avoidance of majority coercion. It anticipates and facilitates, in the words of philosopher Iris Marion Young, “a heterogeneous public, in which persons stand forth with their differences acknowledged and respected.” [51]

Fair Inclusion III: Conflicting Rights Claims

Up until now our discussion has explored situations in which litigants raised a constitutional challenge vis-à-vis state officials or semi-public authorities. It is time to move to the most difficult set of cases, those that involve the competing rights of individuals. Here, the core concern is that facilitating the full force of the right claimed by one side will entail exclusion or breach of a protected right for the other. The recent N. (S.) decision serves as an illustration. [52] This case arose in the context of a sexual abuse criminal proceeding, and dealt with the balancing of two fundamental Charter rights that were clashing with one another—namely, the accused’s right to a fair trial and the witness’s right to act in accordance with her religious beliefs and benefit from equal access to the justice system. The complainant, N.S., alleged that she was repeatedly sexually assaulted by the defendants while she was a child. When called as a witness at the preliminary hearing against the accused, N.S. asserted that her religious belief requires her to wear the niqab—a veil that covers the face but not the eyes—while testifying in court. The accused disagreed, arguing that the right to a fair trial requires that legal counsel and the trier of fact be able to see the witness’s demeanour during her examination and cross-examination.

The Supreme Court of Canada’s split decision included two opposing positions, delivered by the concurring and dissenting judges, and an intermediate framework adopted by the majority. Writing for the majority, Chief Justice McLachlin reiterated that when faced with conflicts between freedom of religion and other values the Canadian tradition has been to respect the individual’s religious belief and to accommodate it if at all possible. [53] This approach places the competing interests in a balancing formula, rather than categorically prioritizing one set of interests over the others, reflecting the preference for proportionality and minimal impairment that has become deeply entrenched in Canada’s constitutional jurisprudence. In light of this framing of the analysis, the Court held that a total ban on the niqab is an intrusion by the state that is inconsistent with the Charter.

The debate about the relevance of section 27 to the analysis is most evident in the concurring opinion by LeBel J., which endorsed stability and continuity in responding to today’s winds of multicultural change (reminiscent, in this sense, of recent European trends), insisting that the “openness of the trial process” requires a categorical ban on niqabs in the courtroom. In contrast, the dissenting opinion reached a diametrically opposed conclusion: while “conced[ing] without reservation that seeing more of a witness’ facial expression is better than seeing less,” Abella J. holds that the assessment of demeanour can nevertheless be achieved even without seeing the bare (or “naked”) face. [54] While the debate among the justices focuses on the technical difficulties of assessing demeanour, the case reveals a far deeper disagreement: it turns the veil into a test case for determining how far the principle of religious freedom will go when it fiercely conflicts with other protected Charter rights, how to conceptualize the balance between stability and change in an increasingly diverse society, and how to navigate the competing interests of religious freedom, the right to a fair trial and access to justice for minorities-within-minorities, here, niqab-wearing Muslim women.

This is what makes N. (S.) such a hard case. As a minority woman and a sexual assault complainant, N.S.’s religious freedom claim also encapsulates a powerful plea for fair inclusion and equal access to justice for all women, including minority women who profess a non-dominant religious belief or practice. In this way, the judgment also might be seen as relevant to section 28 (although that provision was not discussed in the decision). The value of fairness to the complainant and the broader societal interest of not discouraging niqab-wearing women from reporting offenses and participating in the justice system is vital to the analysis; indeed these considerations are now part of the public record, expressed powerfully by the dissenting opinion and echoed in the majority’s reasoning. [55] The Supreme Court of Canada ultimately adopted a case-by-case approach, resisting the idea that users of the justice system must “park their religion at the courtroom door,” just as it rejected the response that says that “a witness can always testify with her face covered.” The N. (S.) decision, with its multiplicity of judicial pronouncements, has already attracted considerable attention and may continue to do so in the future, especially as we consider the constitutional challenges directed at the federal government’s niqab ban at citizenship ceremonies, which I discuss below, or at Quebec’s controversial “Charter of Values” (had it been adopted as a binding public policy).

Although the law is certainly not the most refined tool for dealing with the dynamism of intersecting and overlapping belongings and the various possible expressions of “culture” and “identity,” the Court in N. (S.) refused to undermine N.S.’s religious freedom and respect for differences claim simply by pointing to the fact that N.S. was willing to expose her face to a female photographer when applying for a driver’s licence (special accommodation in the form of screens was offered to her by the issuing government office). [56] This is an important holding. Had the Court seen this prior engagement with the state as undermining the sincerity of her belief, it could have unwittingly discouraged engagement—here, redress in the justice system by minority community sexual assault complainants, a particularly vulnerable constituency—with any institutions of the larger society by legally coding any such engagement as a “compromise” or “sell out” of the community.

This emphasis on sincerity (rather than “strength”) of belief, in this context, also has another advantage. It allows courts in Canada to avoid a value judgment of the face-covering practice. As Abella J. notes in her dissenting opinion, controversies surrounding the niqab are prevalent both within and outside the Muslim community. These controversies include questions such as “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it.” [57] Justice Abella further states:

These are complex issues about which reasonable people can and do strenuously disagree. But we are not required to try to resolve any of these or related conceptual issues in this case, we are required to try to transcend them in order to answer only one question: Where identity is not an issue, should a witness’ sincerely held religious belief that a niqab must be worn in a courtroom, yield to an accused’s ability to see her face. [58]

This lucid analytical approach, with its steadfast resistance of armchair social theory, allows Canadian courts to avoid the trap of abstractly stipulating inconsistencies between diversity and equality. Perhaps the most important conceptual lesson to be drawn from N. (S.) is that the adoption of a contextual, “in concreto” case-by-case approach that remains grounded in the law and facts of each particular dispute, even if it does not offer a perfect solution, is preferable when considered against the tendency towards the abstract declaration of irreconcilable value conflicts demonstrated by European courts as we shall explore below.

Context and Membership Matters: A Detour to Strasburg and Paris

Consider the contrast between the Canadian approach of side-stepping the debate about the symbolic meaning of the veil (and whether it is mandatory for Muslim women at all) and the framework of analysis emerging from Europe’s highest human rights court, as reflected in the ECtHR’s engagement with respect-for-differences claims brought by women who wish to practice a less extensive form of veiling, namely, donning the hijab (a head cover worn by some Muslim women, in which the face remains visible). Much like the decision in N. (S.), the European Court of Human Rights decisions in the hijab cases of Dahlab and Sahin engage in proportionality analysis and balancing of competing interests. [59] But the difference lies in the level of abstraction. Whereas in N. (S.) the Supreme Court of Canada endorses a contextual approach, which reserves the ultimate balancing decision to the closest-to-the-ground judicial authority (the presiding judge), in Dahlab and Sahin the “‘balancing’ that takes place is a balancing of abstract stipulated inconsistencies (secularism and democracy vs. the religious symbolism of the veil; women’s equality and tolerance vs. Islamic religious obligation) rather than evidentially demonstrated in concreto conflicts of rights with other rights, or of rights with important public interests.” [60]

Similar concerns about the Strasburg court “sacrifice[ing] concrete individual rights guaranteed by the Convention to abstract principles” were even expressed by the two dissenting judges in the recent SAS decision, in which the majority of the ECtHR ultimately upheld the French legal ban that prohibits the wearing of face-veils in public. [61] In that decision, denounced by critics as reinforcing the singling out of Islam as a minority faith, the Court relied on the French government’s argument that promoting “living together” (le ‘vivre ensemble’) is a legitimate ground for restriction of fundamental rights protected by the Convention. [62] To understand this last point, some background regarding the challenged legislation is required. In 2010, France became the first country in the world to criminalize the wearing of face veils, such as the niqab, anywhere in public—with the exception of houses of worship. [63] The draft of the 2010 Law included an explanatory memorandum that stated that “[e]ven though the phenomenon, at present, remains marginal, the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic.” The law was passed by the National Assembly by an overwhelming majority (335 votes in favor, one vote against, and three abstentions). The Senate also followed suit with 246 votes in favor and one abstention. In drafting the legislation, as part of its fact-finding mission a parliamentary committee had concluded that “the wearing of the full-face veil on national territory” was a recent phenomenon in France, and by the end of 2009, was only practiced by about 1,900 women out of France’s 4.7-million-strong Muslim population. This is approximately 0.0004 of the relevant population, or a ratio of less than 1 in 2500. Numbers are not everything in legislation, but in the context of heightened political and legal tensions surrounding an “ostentatious” expression of a minority identity that is increasingly perceived as threatening and “foreign” in Europe, it is hard not to be reminded of William Blackstone’s observation that whereas civil injuries are “an infringement … of the civil rights which belong to individuals … public wrongs, or crimes … are a breach and violation of the public rights and duties, due to the whole community.” [64] The act of defining an expression of particular, more conservative, variants of the Islamic faith as a public wrong bears not only a punitive function, but also an expressivist meaning: the outrage of the majority community against what it perceives as an offensive repudiation of laïcité and other foundational values of the republic. From that vantage point, the person who breaches the criminal code’s prohibition against face-veiling acts in violation of the whole community and its “common culture.” In this way, the criminal code—and the state machinery that enacts and enforces it—expresses moral condemnation of the actor not just the prohibited act. The face-veil banning legislation advances a particular vision of the public sphere that sheathes popular anxieties about the majoritarian discomfort of living side by side with veiled Muslim women who are de jure included in the polity, but are de facto ostracized as the quintessential “Other.” Tremendous political capital is invested in such laws as symbolic manifestations of an idealized “France [which] is never as much itself, faithful to its history, its destiny, its image, than when united around the values of the Republic: liberty, equality, fraternity,” as the 2010 Law explanatory memorandum reads. Although ostensibly advanced as promoting neutrality, openness, and dialogue, these measures may inadvertently become a variant of “indirect persuasion,” even rising to “direct compulsion" reminiscent of the kind that occurred in the past when the state would use public authority to advance the symbols and practices of a majority religion (as we saw earlier in Big M), though now such methods are applied to the “new church” of secularism.

From the official French statist perspective, however, prohibiting such expression of religious minority identity, or “sectarianism,” is not a failure of fair inclusion but merely a manifestation of the familiar laïcité principle, dating back to 1905, which resists any expression of religiosity as a breach of neutrality and secularism; it is also a necessary measure for promoting social cohesion. However, this framework fails to take context into account—in which using the full force of the power of the state to legally prohibit a member of a minority community expressing certain aspects of her religious identity holds additional dimensions of marginalization and exclusion. Equality among citizens is affected by defining her “veiled” presence in public spaces as harmful to others. These other dimensions are camouflaged when the statist discourse simply claims to be evenhandedly applying facially-neutral laws, practices and policies – a point that advocates of fair inclusion as non-coercion and accommodation have long emphasized in Canadian debates. [65] To put this last point differently, absent from the official narrative is an account of the power relations and context in which the encounter between the (“sectarian”) individual and the (“universal”) state occurs. The ECtHR, alas, sided with the latter over the former. It cited the French parliamentary report that described the practice of face-veiling as “at odds with the values of the Republic,” implicitly reinforcing, in direct contrast to Canada’s Big M, the power of a dominant majority to impose its (in this case, laïcité) worldview by means of national, purportedly neutral, legislation that in effect imposes concrete and predictable burdens and restrictions on the protected rights of members belonging to already marginalized religious minority communities. Yet as we have seen earlier in the discussion, in the resounding words of Big M: “What may appear good and true to a majoritarian … group, or to the state acting at their behest, may not … be imposed upon citizens who take a contrary view.”

As part of its larger debates about membership and collective identity, France has also forged a link between veiling, the return of assimilation, and restriction of access to citizenship and government services, again placing a penalizing burden on veiled women who belong to minority religious communities. Consider the case of Faiza M., from France, in which the Conseil d’État upheld a decision to decline citizenship to a niqab-wearing Muslim woman who was fluent in French, married to a French citizen, and had three French children, because “she had adopted a radical practice of her religion, incompatible with the values essential to the French communauté, notably the principle of equality of the sexes.” [66] This case dealt with an immigrant who was already residing in France as a lawful permanent resident by virtue of her marriage to a French national and sought to take the additional step of gaining full inclusion as an equal in the political community. Her naturalization application was denied, however, because her cultural and religious “differences” made her, in the eyes of the state, “un-assimilable” to French society. These differences were evidenced by her insufficient knowledge of the semi-sacred principle of laïcité, as well as by her reclusive and domestic-centered family life, which was seen by the Conseil as a sign of both submission to the male figures in her family and evidence of a lack of assimilation. [67]

This is an ironic reversal of the feminist emancipatory slogan the “personal is political”—here providing the excuse for a state to heavy-handedly determine whether a woman ought to qualify as a citizen. This is surely not the first time that administrative agencies and reviewing courts have been caught in the muddy waters of defining what a “legitimate” form of the family unit is for purposes of granting eligibility to government services or benefits, nor will it be the last. However, this decision went a step further: it used the degree of an immigrant woman’s commitment (or lack thereof) to gender equality within the private sphere of her family circle as a foundation for denying her access to the most public of state entitlements: citizenship. As theorists and activists have long recognized, citizenship not only offers the individual a juridical, legal status. It also has the potential to play a significant role in societal struggles for equality, dignity and the fair inclusion of those once excluded, since it bears the moral and legal force required to make “a claim to be accepted as full members of the society” hold firm. [68] The decision in Faiza M., alas, sends a chilling message to similarly situated women that they are not welcome in contemporary France. The applicant’s lack of familiarity with the basic values and rights of citizenship in her adoptive country may indeed be alarming from the perspective of the state, especially if the objective of the naturalization process is to engender an informed and participatory citizenry. This governmental objective, however, could reasonably have been addressed by less drastic means than the denial of naturalization, such as by allowing—or even requiring—the applicant to enroll in citizenship classes or by counting her agency in challenging the naturalization-denial decision before the court system as evidence of a degree of civic engagement and immersion into French society.

Unlike the denial of citizenship in Faiza M., the Supreme Court in N. (S.) had no interest in ascribing meaning to the wearing of the niqab or making a judgment regarding whether that meaning accorded with Canadian values. This approach helps avoid the dangerously charged terrain of assumed (rather than proven) tensions and inconsistencies. If gender equality and the empowerment of the immigrant Muslim woman applicant were the end goals of the Faiza M. decision, then it is hard to see how denying her request for full inclusion and membership in the state—a legal status cementing a direct and unmediated bond between the individual and the political community that, once bestowed on her, is independent of her relationship with her husband—is conducive to that goal. Instead, we can interpret this decision as endorsing the statist interpretation of the veil, and especially its more extensive covering variants, as a symbolic affront to European countries’ self-definition as liberal and “civic.” No one expressed this sentiment better than France’s former urban affairs minister, Fadela Amara, herself a practicing Muslim, who in a press interview endorsing the Conseil d’État ruling described Faiza M.’s religious attire as “a prison, it’s a straightjacket.” [69] The ultimate force of this characterization is to place substantial—and arguably unfair and disproportional—burden on women’s (covered) heads and bodies. [70] In a society formally committed, since the French Revolution, to liberté, égalité, and fraternité, denial of access to citizenship must remain a rare, exceptional, last-resort measure. It would be more conducive and democratic to first invest heavily in putting women’s interests and special needs at the heart of the analysis, for instance by providing them with advice about their legal rights or facilitating the cultural and social know-how to allow them to stand on their own feet in their new country of residence. This is a more promising route than turning them into pawns in renewed battles between state and (minority) religion. By denying an immigrant woman citizenship, the Conseil d’État left her in a dependent position vis-à-vis her husband, who already had a secure legal status in the state, and further politicized the debate over the “compatibility” of certain Islamic practices with both women’s rights and the laïcité predominant in France’s vision of republican citizenship.

As Canadian courts have repeatedly stated, even if a given law and regulatory scheme promotes an important social goal, the burden is on the government to explain why a significantly less intrusive and equally effective measure was not chosen and to demonstrate that the chosen measure only minimally impairs the protected rights and interests at stake. [71] This is especially true given the profound significance of citizenship, which has been described as “nothing less than the right to have rights” by the U.S. Supreme Court (echoing the famous words of philosopher Hannah Arendt); any restrictions must be narrowly tailored and operate as a last resort only, for at stake is the vital membership and dignity interest of the individual. [72]

Troubles in Paradise: When Diversity and Equality Collide

Even in multicultural Canada, tensions have arisen in recent years surrounding questions of membership and belonging. As in other countries, the laws and regulations governing citizenship reveal much about the society that construed them, telling us “who the state considers a full member, how that membership is transmitted inter-generationally, and how it can be lost, gained, and reclaimed.” [73] The history of access to citizenship in Canada still bears the scars of past exclusion on the basis of considerations such as race, gender, national origin, religion and indigenous status. [74] While Canada now rightly takes pride in being an open, multicultural society that welcomes immigrants from the four corners of the world, any restrictions on the basic right to have rights appearing to target a particular group of settled immigrants or newcomers because of a particular characteristic or religious practice deemed “too different” from the perspective of the majority may taint this reputation and confirm a sense of injustice that may be felt by those affected.

In 2011, the Minister of Citizenship and Immigration Canada (“CIC”) released in an operational bulletin (an internal ministerial set of guidelines) providing instruction to CIC staff to help ensure that participants in a citizenship ceremony, the final step of the naturalization process, will not be permitted to take the oath of citizenship while wearing face covering. [75] In explaining the objective of the new rules, the Minister reasoned that: “The oath of citizenship and the citizenship ceremony is a solemn and essentially public time when the individual expresses his or her loyalty to Canada in front of fellow citizens. … That is why I clarified yesterday that citizenship applicants will now be required to recite the oath in an open and transparent manner and to do so without being obscured by a face covering. This decision underscores the essentially public nature of the oath.” [76] The emphasis in this statement on expressing loyalty in front of fellow citizens—echoed by top government brass stating that taking the oath while veiled is “offensive” [77]—provides a manifestation of the traditional “undifferentiated” (or monocultural) model of membership, according to which citizens, or citizens-in-the-making, must transcend their particular interests, perspectives, and experiences; a demand that “ends up reinforcing the position of the dominant groups in the public domain.” [78] The particular-cloaked-as-universal vision of the idea of “living together” (which we saw earlier emphasized in a more comprehensive fashion in the context of the French face-veil ban and the SAS decision) may all too quickly run amok and lead us to the (misguided) conclusion that, in order achieve fair inclusion and equal footing with other members of the shared political community, some members, but not others, will have to relinquish a sincerely held belief, or be asked to denounce certain aspects of a minority identity that they view as constitutive of who they are and how they perceive themselves. [79]

Recent years has nevertheless seen the rise of a concentrated governmental campaign to “reinforce the value of Canadian citizenship,” which has generated a spate of legislative and executive initiatives. Preventing women wearing the face-cover from accessing the citizenship ceremony is part of this more muscular version of “Strengthening Canadian Citizenship” (a revealing title of a recent amendment to the Citizenship Act). [80] The more aggressive emphasis on expressing and demonstrating “loyalty” by erasing certain markers of religious or other identity-based minority affiliation is, alas, foreign to the letter and spirit of the concept of fair inclusion as developed through the jurisprudence. As the majority enunciated in N. (S.) when considering whether a witness may wear the niqab in court, “to remove religion from the courtroom is not the Canadian tradition. Canadians have, since the country’s inception, taken oaths based on holy books—be they the Bible, the Koran, or some other sacred text.” [81] The same considerations should, by analogy and with equal force, be applied in the context of taking the oath in a citizenship ceremony, where religious and cultural identities are to be celebrated according to Canada’s multicultural tradition rather than forcibly removed from the public sphere. [82] The face-veiling ban in citizenship ceremonies also stands in tension with the official version of multiculturalism that Citizenship and Immigration Canada itself publically endorses:

In 1971, Canada was the first country in the world to adopt multiculturalism as an official policy. By so doing, Canada affirmed the value and dignity of all Canadian citizens regardless of their racial or ethnic origins, their language, or their religious affiliation. … Multiculturalism ensures that all [Canadians] can keep their identities, can take pride in their ancestry and have a sense of belonging. Acceptance gives Canadians a feeling of security and self-confidence, making them more open to, and accepting of, diverse cultures. … Multiculturalism has led to higher rates of naturalization than ever before. With no pressure to assimilate and give up their culture, immigrants freely choose their new citizenship because they want to be Canadians. [83]

Inspiring words. The motivating idea here is to treat newcomers as citizens-in-waiting, not as presumed “outsiders.” [84] The Canadian Bar Association, which, like many other civil society organizations across Canada, has volunteered to conduct citizenship ceremonies captures the special environment of these ceremonies, stating that “for many individuals and families, the citizenship ceremony is the realization of a dream. It is a formalized rite of passage that marks your entry into the Canadian family.” [85]

Recent legislative changes have made this rite of passage more difficult to secure, however. The government has introduced stricter residency requirements, and as of 2015, freshly-minted naturalized citizens must demonstrate an “intention to reside” in Canada – echoing the air of suspicion we met earlier in our discussion of the restrictive turn in Europe. [86] It is within this context that the face-veiling ban in citizenship ceremonies, accentuated by the accompanying public declarations by government officials, can be seen as part of a subtle yet persistent attempt to distinguish between inclusion for the majority of “loyal immigrants” who willingly and “successfully demonstrate that they have internalized prevailing ‘values’ … [and exclusion for those immigrants who are] judged to have rejected liberal-democratic norms, through their deeds and/or speech.” [87] As a policy instrument, the government’s operational bulletin is not directly subject to constitutional challenge, but an individual is free to challenge the government’s new rules if she is denied citizenship solely on the basis of refusal to remove the niqab while taking the oath, or if she makes a request for an exemption or accommodation and that request is denied. Both scenarios involve state action, and are thus open to a constitutional challenge. Unlike the conflicting rights of individuals at issue in N. S., here we are dealing with state action. In the past, before the operational bulletin took effect, the oath, typically recited publicly as part of the citizenship ceremony, was in such circumstances recited in private in front of a female citizenship judge. No longer so, argued the government. A constitutional challenge soon followed on the basis of breach of the constitutional protection of religious freedom and gender equality, the twin concerns at the heart of our inquiry. It was brought by a niqab-wearing immigrant, Zunera Ishaq, who successfully passed all the prerequisite requirements to naturalization, including the citizenship test. She requested to take the citizenship oath with her face covered during the citizenship ceremony, a request that was denied by the government. [88]

The Federal Court heard from the claimant that she perceived the “governmental policy regarding veils at citizenship oath ceremonies [a]s a personal attack on me, my identity as a Muslim woman and my religious beliefs.” [89] The presiding judge accepted her claim and struck down the ban: “To the extent that the policy interferes with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath,” wrote the federal court, “it is unlawful.” [90] Although the case was determined on administrative rather than constitutional grounds, the decision also took account of the gendered and exclusionary message such a ban carries with it: “The policy in this case could be dissuading women who wear a niqab from even applying for citizenship. In such circumstances, a direct challenge to the policy is appropriate,” read the decision. [91] This last point is important. It offered a rejection by the court of the government’s argument that the applicant did not have to pursue Canadian citizenship; she could simply remain a permanent resident (or what scholars have termed a “denizen” who lacks political rights), ignoring the inequality that such a solution perpetuates when compared to gaining full membership – and its accompanying rights and protections – including political rights to participate in the democratic act of authoring the laws that collectively govern our public life. [92]

The Federal Court’s decision was quickly appealed by the government, and none other than the Prime Minister, himself, publically commented on it during a visit to Quebec, stating that he believes the practice of veiling at the citizenship ceremonies is “not acceptable.” Further inflaming the rhetoric, the Prime Minister objected to the idea of newcomers “hid[ing] their identity at the very moment where they are committing to join the Canadian family.” [93] At this stage, in the midst of an election year, the citizenship-oath niqab saga gained attention well beyond the courtroom, receiving ample domestic and international media coverage. [94] In a much-anticipated decision, the Federal Court of Appeal, like the Federal Court before it, ruled against the new policy on procedural grounds; the decision did not engage the substantive Charter rights at issue. [95] As in the response to the previous court ruling, various government officials continued to tout the value of the new (and by then, struck down) policy. The minister responsible for citizenship and immigration, for example, expressed the view that: “New citizens should recite the oath proudly, loudly and for everyone to see and hear.” He also implied that the policy might be extended to hijabs. [96] The Prime Minister was quoted as saying: “[W]hen someone joins the Canadian family, there are times in our open, tolerant, pluralistic society that as part of our interactions with each other we reveal our identity through revealing our face.” [97]

This articulation of the rationale for the ban represents the majority as generous and inclusive (hence the rhetorical power of the analogy between joining a family and one’s new home/society), while implicitly placing the “blame” for eroding such openness on those who are not willing to reveal their identity and their face at the constitutive moment of becoming Canadian. This framing of the issue helps explain why analysts dubbed it a “wedge issue”; opinion polls showed ample popular support for the ban, while its detractors emphasized that “Canada defends the rights of minorities, we respect people’s rights.” Another interesting twist in this story was the fact that the government sought an expeditious stay to the Federal Court of Appeal ruling, a legal move that would have had the immediate effect of barring Ishaq, the woman who challenged the face-covering ban, from obtaining citizenship and the franchise.

We have earlier seen the deprecation of women’s ability to access the direct and reciprocal relationship of citizenship in the context of France’s Faiza M, a move that is particularly punishing for female members of minority communities who have historically been denied such access. [98] This belittles their agency and makes them pawns in renewed state-religion struggle for power and recognition. Whatever the merits of such realignments, the price of exclusion is unfairly borne by those already marginalized and stigmatized. Another challenge to watch for in the coming years stems from the relationship between veiling and denial of access to public services, as conceptualized, for example, in the controversial (and ultimately-failed) attempt to introduce the Charter of Quebec Values, which would have prohibited the wearing of “conspicuous religious symbols” (including turbans, kippas, hijabs, and large crosses) by civil servants while on the job, and would have also made the giving and receiving of state services conditional on the showing of an “uncovered face.” [99] The Quebec Minister of Democratic Institutions and Active Citizenship at the time, Bernard Drainville, reasoned that “[p]eople have to be identifiable, mainly for security reasons,” holding that an exemption or accommodation to the face-covering ban must be denied if “reasons of security, communication or identification warrant it.” [100]

The Charter of Values proposed by Parti Québécois government bitterly divided Quebecers, and never came into law. But the underlying tensions it tracked concerning the relations between state and (minority) religion have anything but disappeared. The current liberal government in Quebec is also preparing a new piece of “value legislation” that will be tamer than the inflammatory Charter of Values, but nevertheless reinstates some of its core provisions, including provisions that proscribe face covering while dispensing or receiving government-funded services at public schools, hospitals, courts, licensing bureaus, and other institutions that represent the “official visage” of state authority. [101] If the face-covering ban becomes binding law, the courts will have to confront squarely the question of the constitutionality of impeding a niqab-wearing woman from receiving basic governmental services while also maintaining her sincere religious belief. [102] Here again we see how the idea of “living together” can be distanced and distorted from an inclusionary meaning to an exclusionary fiat, riding on, or actively engendering, suspicion if not prejudice against those who are perceived, in the eyes of growing segments of the population, as the quintessential “Others.”

Educational Interludes

It is time to take stock. I have identified three different kinds of fair inclusion, reflecting the distinctively Canadian multiculturalism experiment. Our journey has revealed that the “multi” is premised on eradicating, or at least curtailing, the visible and explicit privileges once held by the majority, under color of law, as part of a broader policy shift that took place more than half a century ago that opened Canada to a world through more aggressive recruitment of immigrants, most of them highly-skilled and well-educated, from literally every corner of the world. It is also part of a broader political culture that counsels “negotiation, compromise and a willingness to accommodate groups whose religious beliefs and cultural practices may diverge from those of the majority.” [103] Less often recognized, however, are the ground rules that fair inclusion policies, in their three variants, place on social actors. In opening up opportunities for newcomers and established minority communities, nontrivial expectations and ground-rules are placed on those participating in the “Canadian multiculturalism experiment.”

Two recent examples from the realm of higher education can help explain this last point. In 2014, a male student who self-identified as holding “firm religious views” (without declaring of which religion) and was enrolled in a bachelor degree program at a major public university in Toronto, sought exemption from an on-campus component of an online course offered by the university, claiming that his religious beliefs forbid him from meeting or intermingling in public with women. While Canadian public universities, especially those located in large urban centers, proactively create fair inclusion practices designed to respect and accommodate the religious observances of the many faith communities on campus through measures ranging from providing alternative exam dates for students affected by a conflict to ensuring campus dining halls feature kosher and halal dishes, as well as vegan and vegetarian options to meet the needs of an increasingly multicultural student population, the male student’s refusal to interact with female students on account of their gender sparked a public furor. [104]

The instructor of the course denied the request, on grounds that it would set a “dangerous precedent, labelling women as second-class citizens,” but the university’s administration overturned the instructor’s decision. [105] Following a sharp 12-page response by the professor to the university’s ruling (which was not made public due to privacy reasons), the story went viral. The student eventually rescinded his request and the matter never reached the stage of a judicial pronouncement. In the court of public opinion, however, it was the instructor, rather than the student and the university administration that gained the strongest support. The position that female students must be treated with dignity and respect, just like their male colleagues, resonated with many Canadians as the only way to ensure we can live together and interact with members of different communities in a society committed to diversity-in-unity.

The devout student’s demand to be exempted from attending a section of the course that would have required him to interact with female students because of his religious belief was not perceived as insincere or as falling outside the realm of a protected religious freedom claim. Rather, it was opposed on grounds of balancing competing rights: accepting without reservation the religious freedom claim to refuse to interact with certain segments of the student population on account of their gender that would have come at the expense of directly restricting the equality rights of others. This reveals an underlying assumption of reciprocity in the acceptance of “differences” – whether they are based on religion, gender, race, sexuality, and the like – that is built into the Canadian premise of “living together.” You will not judge me (or grant me or deprive me opportunities) and I will not judge you (or grant you or deprive you opportunities) on prohibited grounds. Put differently, what was objected to was the breach of the commitment to mutuality inherent in the “multi.”

Another recent legal controversy, pitting religious diversity v. equality for sexual minorities, emerged when an evangelical Christian university, Trinity Western University (TWU), applied to receive accreditation to establish a faith-based law school in which admitted applicants would be obliged to sign a community covenant agreement which specifically contemplates that gay, lesbian, or bisexual students may be subject to disciplinary measures, including expulsion. As required by law, Trinity Western filed an application for approval of its proposed law school from the relevant provincial authorities in British Columbia, where the school was to be built. It also submitted a request for accreditation from the Federation of Law Societies in Canada, a national coordinating body of the legal profession which is self-governing in Canada. [106] Initially, the respective regulatory bodies determined that the proposed law school met national standards and granted preliminary approval for its accreditation. [107] At this stage, however, lawyers from different parts of Canada galvanized their opposition to such accreditation and several provincial law societies passed resolutions declaring that the TWU was not an approved law school, or withholding their approval until Trinity Western would amend its community covenant or exempt law students from the mandatory requirement of signing it. [108] In effect, such resolutions mean that graduates of the new law school would not be able to practice law in these provinces. With litigation pending, the British Columbia Ministry of Advanced Education which originally approved the law school’s request, switched its position and revoked the approval. [109] Several law suits ensued, and are still ongoing. A court in Ontario recently held that in balancing the competing interests, the decision of the law society in Ontario not to accredit the law school interferes with the university’s protected religious freedom under the Charter. But this determination is not the end of the story. It is only the beginning of the balancing exercise. “On the one hand, there the right of the applicants [TWU] to freedom of religion including their right to operate a law school designed for person who share a common religious belief.” On the other hand, continues the court “are the equality rights of persons who might wish to attend TWU’s law school in order to pursue their legal education but who, at the same time, wish to be true to themselves and their own beliefs.” [110] At this stage of the analysis, the court ruled that the law society was entitled to balance against TWU’s religious freedom the impact on equality rights that accrediting the faith-based law school would have had on historically disadvantaged minorities:

While much attention in this case was directed at the discriminatory effect of TWU’s Community Covenant on LGBTQ persons, the reality is that the discrimination inherent in the Community Covenant extends not only to those persons, but also to women generally; to those persons of any gender who might prefer, for their own purposes, to live in a common law relationship rather than engage in the institution of marriage; and to those persons who have other religious beliefs. [111]

True to Canada’s “in concreto” approach, the court acknowledges that “Evangelical Christians are a [non-dominant] religious subculture” in Canada and that TWU was “created to support the collective practice of evangelical Christianity.” [112] At the same time, the court also recognizes that TWU’s community covenant discriminates against “two historically disadvantaged minorities (LGBTQ persons and women).” [113] In balancing the faith-based law school’s protected rights to freedom of religion with the equality rights of members of historically disadvantaged minorities, the former cannot supersede the latter. Any other solution, held the court, would entangle the accrediting law society in “condoning discrimination [which] can be ever much as harmful as the act of discrimination itself.” [114] In those infrequent cases where diversity and equality diametrically and concretely clash, then, and where no legal considerations can mitigate the conflict, the Canadian approach concludes that it is unjust for one person’s claim for fair inclusion to trump another’s right to it. To put this point more schematically, it is unjust to accept X’s claim for fair inclusion, if it leads to Y’s unfair exclusion. [115]

TWU appealed. Although this legal dispute if far from concluded (there are other pending cases in other parts of Canada), it is striking to note how jealously the legal profession—across its various actors—guarded the legal system’s unique role in the state as a “higher law” guiding (however imperfectly) our collective life and whose ordained “priests” must be carefully selected and regulated. Pushing this image further, we can think about the language of neutrality and balancing that we have encountered throughout our journey through Canada’s multicultural experience as the new “religion” (although it clearly differs from the absolutist “secular religion” that we have seen in France) that provides a law- and human-centered alternative to the once-sacred sources of authority that provided guidelines for public life. [116]

Conclusion

In this article, I have identified three different variants of the fair-inclusion branch of response to the imminent challenge of living together as equals in our increasingly diverse societies. The focus has been on how courts, legislatures, and other legal actors now find themselves grappling with how to give meaning to the constitutional commitment of preserving and enhancing the multicultural heritage of Canadians, while at the same time fulfilling the obligation to treat every member of society as an equal worthy of full dignity and respect. As we have seen, there are no predefined or easy formulas for how to best fulfill the requirements of diversity and equality. Although the judiciary in Canada adamantly averted direct compulsion or coercion, safeguarding religious minorities from the “tyranny of the majority,” we have seen that in several European countries the power of the state and lawgiving has been used to reinforce what scholars have called the “retreat of multiculturalism” and the “return of assimilation.” [117] We have also seen that this process implicitly codifies a dangerous “us” versus “them” mentalité. Nor has this trend fully escaped Canada, as the recent citizenship oath saga demonstrates.

In Canada, as elsewhere, there is a real risk that with greater polarization on a political level, populist vote seeking behavior may create further incentives to scapegoat those deemed “too different” who offend the sensitivities of the majority and to exclude them from full and equal membership. Such attitudes and policies run counter to the commitment to the “multi” that is explicit in multiculturalism but also embedded in the rich traditions of pluralism and liberalism; yet the pressures and tensions now felt everywhere are real and pressing.

In the public spaces we share, in the workplace, the marketplace, the school or the university, the old rules must give way to new ones. These are yet to be fully written. Even with an explicit commitment to advancing both diversity and equality, as encoded in the Canadian Charter of Rights and Freedoms, this grand task remains an ongoing work-in-progress. Despite these challenges, at its best, Canada’s unique multiculturalism in its three variations of fair inclusion can foster an inclusive environment that allows minorities to express, in the words of Will Kymlicka, their “cultural particularity and pride without it hampering their success in the economic and political institutions of the dominant society.” [118] In doing so, the Canadian model can illuminate and unravel the dilemmas and challenges now faced by literally every society throughout the globe. Contrary to the claims advanced by its detectors, multiculturalism, at least in the Canadian version of fair inclusion, is not about creating hermetic “silos” or “parallel” islands of jurisdiction. Tremendous social and political capital is invested in creating possibilities for dialogue, negotiation, and “balancing.” This is no panacea or even an easy model to follow. It offers, however, a more inclusive framework for addressing the challenge of “living together” than the formulas currently offered by other comparable constitutional orders. In setting – and constantly stretching – the legal boundaries of exemption and accommodation, as we have seen, the relations among rights are not hierarchical but they are mutually limiting.

Acknowledgments

I am grateful for the valuable comments and suggestions I received on earlier drafts from Moshe Cohen-Eliya, Paul Kahn, Shai Lavi, Iddo Porat, Gila Stopler, Avishalom Westreich, Marinka Yossiffon, Lorenzo Zucca, and especially Shelly Kreiczer Levy and Ran Hirschl. This article expands and develops my earlier work on the concept of fair inclusion in diverse societies. I would also like to thank the Law & Ethics of Human Rights student editors, Eyal Sarid and Tom Elbas, for their dedicated assistance.

Published Online: 2016-6-29
Published in Print: 2016-5-1

© 2016 Walter de Gruyter GmbH, Berlin/Boston

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