II. Equality for Citizens
Québec’s Charter of Human Rights and Freedoms guarantees that all citizens can exercise their human rights equally. This is therefore a policy in Québec, proclaimed by the National Assembly itself. The resulting battle against inequalities of all kinds, including social inequalities, is of major importance in Québec. The Government aspires to the ideal that all individuals from every religious and cultural group in society should feel included in and respected by that society. All Québec’s public policy documents deem respect for pluralism and consideration of diversity necessary conditions for the equal exercise of rights and freedoms by all citizens (Conseil des relations interculturelles 1997, 32; Commission des droits de la personne du Québec 1995). In addition to the right to equality (s. 10), the Québec Charter guarantees freedom of conscience and religion (s. 3), the right to free public education (s. 40) and the right of parents to require religious or moral education for their children in conformity with their convictions (s. 41). In addition, if citizens are to exercise their rights and freedoms equally, they must also be prepared to recognize the rights and freedoms of others.
Canada’s policy on multiculturalism also forms part of the background to the relationship between equality and diversity. The purpose of multiculturalism is to achieve equity by recognizing and considering the cultural diversity of the groups that make up the society of Québec. This policy, aimed traditionally at preserving cultures of origin, has evolved in recent times. Its objectives now include civic participation by all citizens, adaptation of public institutions to diversity, and the elimination of obstacles that prevent fair access to public institutions. It is focussed on the values of social justice and equity, and is intended to fuel an enlightened dialogue on cultural diversity, multiculturalism and racism. The Department of Canadian Heritage, which is responsible for the application of the Multiculturalism Act, states in its 1996-97 Annual Report that the multiculturalism policy should be aimed at mobilizing the community in order to resolve and prevent conflicts based on ethnic origin, race, religion and culture, and to prevent hostile acts (Department of Canadian Heritage 1998, 2-3).
Although education falls under provincial jurisdiction, the multiculturalism policy is often invoked by parents of minority students to give weight to their claims for recognition of their children’s needs in schools. The impact of multiculturalism on education can be seen in the reform of the public school curriculum (history and literature courses are being revised to give greater recognition to cultural and historical contributions by ethnic and cultural minorities). It can also be seen in the way institutions have been adapted to pluralism, and in the review of dress codes to accommodate the practices of immigrant groups.
In the field of education, the guarantee of equality translates into the principle of equal opportunity. This principle was taken up in the 1995-96 Estates General, and by the 1998 policy on educational integration and intercultural education, where it is predominant. It is now formally included in the Education Act as a principle of the school mission. Equality of opportunity involves not only access to basic educational services for all children, but also the introduction of special means and compensatory measures (measures to support French language learning, for example) for students who need them (Ministère de l’Éducation 1998, 7). The Commission des droits de la personne du Québec states that not only should the school system treat children equally from a social and legal standpoint, but it also offers an excellent means of correcting inequalities and aiming for equal results (Commission des droits de la personne du Québec 1995, 11). The 1966 Parent Report had already highlighted the dual aspect of equality in schools, that is, the absence of discriminatory exclusions in the system, and recognition of the diversity of needs.
A. The Absence of Discrimination in Schools
Québec’s Charter of Human Rights and Freedoms recognizes the equality of all individuals and guarantees the right to full and equal exercise of the fundamental freedoms granted by section 10, including freedom of religion. Québec’s Commission des droits de la personne et des droits de la jeunesse4 takes the view that, for citizens, freedom of religion involves not only the right to respect for their beliefs, but also the right not to be forced by the public education system to accept religious instruction of any religious denomination whatsoever. In other words, it involves the right to non-denominational education (Commission des droits de la personne du Québec 1979, 8-9).5 As reported in a brief published by the Commission des droits de la personne du Québec, the Parent Report had previously stated that:
. . . in the context of religious pluralism, the state has a duty to protect the freedom of conscience of its citizens, by ensuring that the denominational nature of the public schools, or the religious instruction dispensed therein, does not harm the religious convictions of children who attend those schools. (Commission des droits de la personne du Québec 1979, 11, free translation)
Section 41 of the Québec Charter is consistent with this. It stipulates the right of parents to require a religious or moral education for their children “in conformity with their convictions.” This section has been interpreted as granting students the right to be exempted from religious instruction courses if they do not adhere to the religion in question (Commission des droits de la personne du Québec 1979, 16-19). In its 1979 brief, the Commission observed, however, that the negative nature of the right to be exempted from religious instruction courses meant that it was insufficient to guarantee the right to freedom of religion and the right to equality based on religion, without discrimination. It also stated that Québec’s schools have an obligation to accept students belonging to other religious denominations, and to make arrangements accordingly. For example, schools must offer students a choice between religious instruction and moral education (Commission des droits de la personne du Québec 1995, 9).
The Education Act provides for the possibility of establishing denominational schools within linguistic school boards. The Commission has already said that the granting of denominational status to a school places students of other religions, or those with no religious affiliation, in a situation where the values of Catholicism or Protestantism are conveyed and presented in educational material and in numerous aspects of life at school (Commission des droits de la personne du Québec 1995, 21-22). In this respect, the Commission believes that obstacles to the equal exercise of freedom of religion still exist in Québec’s public educational institutions. In its view, the preferences granted to the Catholic and Protestant denominations are no more acceptable today than they were previously, and these preferences could neutralize the beneficial impact of the removal of denominational status from the school boards (Commission des droits de la personne et des droits de la jeunesse du Québec 1997, 6).
The Commission has intervened publicly on a number of occasions6 to assert that respect for the individual freedoms of conscience and of religion was incompatible with the presence of public and common schools where the beliefs and values of a specific religion are included in the school’s entire educational project (Commission des droits de la personne du Québec 1988, 3). It is clear to the Commission that the fact of maintaining Catholic and Protestant structures grants these two denominations a preference that is contrary to section 10 of the Charter:
If the authorities continue to support a dual discourse, one on the openness and modernity of Québec and its institutions, and the other on the protection of history and the religious tradition in its education system, ambiguity and inconsistency are bound to arise. . . . It is not possible to continue to give preference to representative structures bound by religious adherence in a state that promotes the fundamental freedoms, the right to equality, and the division between state and Church. (Commission des droits de la personne du Québec 1995, 25, free translation)
Such recognition is also contrary to the provisions of the Charter, which provide that the right to public education must be exercised without distinction, exclusion or preference based on religion (Commission des droits de la personne et des droits de la jeunesse du Québec 1996, 10). The Commission therefore recommends that the provisions of the Education Act concerning the granting of denominational status to schools be repealed (1997). It adopts a position in favour of secular common public schools (1996). It is also against denominational religious instruction in public schools, and recommends abolition of the denominational status of structures under the authority of the Conseil supérieur de l’éducation and the Ministère de l’Éducation (1990).
The Catholic Committee, for its part, admits that the denominational system constitutes an “infringement” of the right to equality guaranteed by the Charters. However, it also believes the infringement is justified by
the vitality of the Québec culture, which draws its strength from the sources of the Christian tradition as much as from the French culture. Whether we like it or not, this is how things are. Is it therefore not normal, under the circumstances, for Catholic religious instruction also to have a special status in our schools? Is this not a way of respecting both our history and our present-day social and religious situation? If we wished to grant exactly the same advantages to all groups in a pluralistic society, we would have to equalize the situation to such an extent that we might actually extinguish the national culture. (1995, 30, free translation)
The Catholic Committee justifies this unequal treatment in the name of “equity.” It writes in this regard:
The Charters of Rights have themselves stipulated that some departures from this principle of equality may become necessary, in certain conditions, to avoid placing an excessive burden on our social institutions, or creating a harmful disturbance. Equality pure and simple does not always appear to produce equity. (1997a, 17, free translation)
The Committee takes up this same argument in its brief to our Task Force: “In every society,” it writes, “it seems inevitable that some cultural and religious traditions should occupy a preponderant place because of their historical and social significance” (1998, 7, free translation). The Catholic Committee points out that the religious minorities seem to accept the preferential treatment given to the religious traditions that have marked Québec society’s history and culture the most (p. 17). Nevertheless, the public school system could also allow for denominational schools in line with these traditions.
In its brief to our Task Force, the Catholic Committee believes that the notwithstanding clauses constitute “a legitimate recourse where the state considers it necessary. They are not aimed at legitimizing violations of fundamental rights, but at preserving the capacity to legislate while taking into account, as far as possible, all the aspects of a given reality. One such reality is the right of parents to a religious education of their choice, in conformity with religious freedom” (1998, 6, free translation).
While the Catholic Committee agrees that the various religions are not treated equally, it emphatically objects to the idea that denominational schools generate or constitute a violation of the freedom of conscience and religion of the students who attend them. It maintains that if this were the case in reality, it would have to be proved, and nobody has done this so far. On the contrary, it believes that Catholic schools undertake to respect their students’ freedom of conscience and religion, that their educational project is educational, not religious, in nature, and that it is not a vehicle for specific religious beliefs (1997a, 17). In addition, a certain “accommodation” exists to protect the rights of minorities. These measures include the choice between religious instruction and moral education, the right of teachers to be exempt from dispensing religious instruction, an openness to courses based on other denominations, and the possibility of establishing other types of schools (1996, 30).
B. Recognition of Special Characteristics
In addition to the absence of discrimination in the school environment, the diversity of student needs must also be recognized if citizens are to have equal access to education. Immigrant integration, as we saw earlier, is a process of reciprocal adaptation by the two parties, that is, the host society and the new arrivals. Both are jointly and equally responsible for resolving conflicts of values that might threaten either the right to equality of some immigrants or minority group members, or the social cohesion of the host society itself (Conseil des relations interculturelles 1993, 1). If immigrants were considered in the past to be the main source of conflicts of values, it is no longer possible, as we pointed out earlier in this chapter, to associate religious diversity exclusively with the immigrant phenomenon. It is also a result of the citizens of Québec exercising their fundamental freedoms.
Some specific characteristics may prevent the citizens of Québec who exemplify those characteristics from having equal access to services that are, in principle, available to everyone. The courts, in order to guarantee the right to equality, have therefore invoked the need for reasonable accommodation in situations of direct or indirect discrimination.7 Accommodation has been judged to be an essential condition for the equal exercise of the right to public education (Commission des droits de la personne du Québec 1994, 11).
The duty of accommodation means the duty to apply measures in favour of certain individuals with specific needs, due to a factor related to one of the grounds for discrimination prohibited by the Charter. These measures are designed to avoid situations in which apparently neutral rules have the effect of compromising the equal exercise of a right by the individuals in question. However, this does not constitute an unlimited obligation to yield unconditionally to every single special characteristic, and even less to yield to every intransigence. According to jurisprudence, the accommodation must be “reasonable” for the organization upon which it is incumbent. (Commission des droits de la personne du Québec 1995, 12-13, free translation)
The obligation to consider cultural and religious diversity in public institutions is also designed to prevent the dominant group from imposing its lifestyle and beliefs on the members of the minority. The Conseil des relations interculturelles, during its consultations, identified a certain anxiety concerning the “law of the majority,” in that the majority could impose its point of view unduly as part of the democratic process (Conseil des relations interculturelles 1997, 21).
In 1993, this same Conseil had already issued a brief on dealing with conflicts arising from organizational requirements in Québec society. It described the basic and procedural principles that should guide the search for reasonable accommodation.8 It also recognized that these basic principles were derived from social choices defining Québec as a French-speaking, democratic and pluralistic society (1993, 21), and stated that individual rights and freedoms should be exercised with proper regard for democratic values and public order.
For the Conseil, the reasonable accommodation described in its brief (1997) must not call into question fundamental rights or the common civic framework. With respect to the organization of religious diversity, the Commission des droits de la personne et des droits de la jeunesse states that, for an accommodation to be refused, a violation of public order or of gender equality must be proved and not simply presumed (Commission des droits de la personne du Québec 1995, 19). Moreover, the organization of diversity must take into account the operational constrants of educational institutions: the accommodation must aim to reconcile religious concerns and the way in which an institution operates (p. 14).
Many of the Government of Québec’s public policy documents describe the efforts made by educational institutions to take the religious diversity of their partners into account. All these documents agree that such efforts must continue. The preparation of a guide for school principals on decision making and the resolution of value-related conflicts was supported by the Ministère de l’Éducation (Ministère de l’Éducation 1997 and 1998). The main points of contention concerning the cultural and religious conflicts identified after the guide was produced were the conception of schools and learning, the conception of discipline and the rights of the child, the status and respective roles of men and women, linguistic practices in schools, and respect for the prescriptions and practices of religions other than the Catholic and Protestant religions (McAndrew 1995, 322-323).
Racism has also been identified as a potential source of religious intolerance (Commission des droits de la personne du Québec 1995). The Commission believes it may be possible to promote the social integration of young people by fighting discrimination and racism. No student, it says, should be excluded from school or forced to leave the school chosen, simply because of religious affiliation or a symbol used to express that affiliation. The Commission adds that one of the conditions for exercising the right to a free public education is that the student should, in principle, be free to choose his or her school (s. 4, Education Act) (Commission des droits de la personne du Québec 1994, 8).
Intercultural education, which promotes respect for all cultural forms as well as reciprocal exchanges, forms an integral part of the conditions for individual equality. Another important element is the preparation of teaching material that takes into account both the religious diversity of Québec’s citizens and the need for awareness of that diversity among schools and their staff.
4. This body was known as the Commission des droits de la personne until 1996.
5. The Commission des droits de la personne du Québec defines the right of parents with respect to their beliefs as “the right of every person to have access, in the public educational institutions, to a form of education that is entirely respectful of their religious beliefs, including their lack thereof” (Commission des droits de la personne du Québec 1979, 10, free translation).
6. It spoke on this question in 1979, 1984 and 1988 at the National Assembly Standing Committee’s consideration of the draft Act respecting school elections (Bill 106) and the draft Education Act (Bill 107).
7. The obligation of reasonable accommodation has been recognized in matters of employment, but also extends to matters of education (Ministère de l’Éducation 1998, 33-34; Conseil des relations interculturelles 1997).
8. At the time, the then Minister of Cultural Communities and Immigration invited the Conseil to identify the principles that should serve as reference points and guidelines in the search, by organizations that must adjust to a pluricultural situation, for reasonable accommodation between usual practices and the changes or exceptions demanded by Quebecers from the cultural communities (Conseil des relations interculturelles 1993, I.). 28BIMG8tc @ 8BIMG8tc temp0000001Em comm conseilonnns BINA???? Cl U >8BIMGIFf D 8BIMGIFf C @ 8BIMGIFf K 8BIMGIFf J 8BIMGIFf @ 8BIMILBM K < i 29J 2 PMwp ]