Discrimination
The Canadian and Quebec human rights charters each outline a list of personal traits against which differential treatment is prohibited. While “language” is overtly included in the Quebec charter as a forbidden type of discrimination, the same ground is not acknowledged in the Canadian charter.
Anti-Discrimination Law in Canada
The Supreme Court has described discrimination as a violation of human dignity, which occurs when an action:
- Creates a distinction, intentionally or not, based on an individual or group’s “personal characteristic”; and
- This distinction imposes burdens, obligations, or disadvantages on the individual or group but not onto others; or
- This distinction limits access to opportunities, benefits, and advantages available to other individuals or groups in society.
The personal characteristic of the individual or group must be a “prohibited ground of discrimination”. These prohibited grounds (i.e. legally recognized types of discrimination) are listed in Canadian human rights law, and include characteristics like race, religion, sex, national or ethnic origin, colour, age, or mental or physical disability.
Important to keep in mind is that in these federal laws, language is not expressly included among the prohibited grounds of discrimination.
The Supreme Court has also identified “analogous grounds” of discrimination: personal characteristics against which discrimination is prohibited but not expressly written in the Canadian Charter of Rights and Freedoms. These analogous grounds include sexual orientation, marital status, citizenship status, and “Aboriginality-residence” (Indigenous band-member status while living off a reservation).
The Canadian Human Rights Act also lists additional prohibited grounds for discrimination, such as gender identity or expression, family status, genetic characteristics, pregnancy, or criminal conviction (for which a pardon has been granted).
- These prohibited grounds, however, apply only to institutions that fall under the control of the federal government, like banks, telecom companies, or Crown corporations.
- For more information, read about the Canadian Human Rights Commission and Tribunal in the Anti-Discrimination Resources subsection of our website.
Anti-Discrimination Law in Quebec
In Quebec, every person has a right to the protection of their dignity, honour, and reputation. Similarly to the Canadian Constitution, Quebec’s human rights law defines discrimination as existing where there is a “distinction, exclusion, or preference” of a person that:
- Is based on a prohibited ground; and
- Impairs this person’s right to be treated equally (like any other person) under the law.
Such differences in treatment that lead to the unequal exercise of rights may violate a person’s dignity, and could therefore amount to discrimination in certain situations.
In addition to those listed in the federal charter, the Quebec Charter of Human Rights and Freedoms prohibits discrimination based on the following grounds: sexual orientation, gender identity or expression, pregnancy, social condition, handicaps, political convictions, and language.
The Quebec Charter also makes clear that it is prohibited discrimination to do any of the following based on any of its above-mentioned grounds, including language:
- Refuse an individual access to public services;
- Deny an individual access to public transportation or a public space (for example, a park, hotel, restaurant, theatre, cinema, or other commercial establishments);
- Refuse to lease or sublease a residence (however, it is not discrimination if a landlord refuses to sign a lease in English if he is willing to do so in French – see our Leasing & Renting subsection for more details);
- Refuse credit;
- Fire an individual from their job, or refuse to hire them for a job posting;
- Harassment at work (see our Rights in Provincial Workplaces and Rights in Federal Workplaces subsections for further explanation); or
- Police questioning (see our Arrest & Detention subsection for more information on racial profiling).
With respect to pay equity, the Quebec Charter states that an employer has acted in a discriminatory way if they give different salaries to individuals doing equal work.
- This difference in pay must be based on one of the grounds mentioned above to be considered discrimination (for instance, due to gender inequality between men and women in the workplace).
- It is not discrimination, however, if such a pay difference is based on years of service to the employer, seniority, merit, experience, productivity, or overtime, if these criteria apply evenly to all members of the employer’s staff.
Importantly, it is not considered discriminatory for non-profit organizations “devoted exclusively to the well-being of an ethnic group” to make distinctions in their hiring process if these differences are: (1) based on the qualifications needed to do the job; or (2) justified by the charitable, philanthropic, religious, political, or educational nature of the organization.
What anti-discrimination language rights exist in Quebec law?
The Quebec Charter of Human Rights and Freedoms explicitly prohibits discrimination on the basis of language, which can mean either: (1) your mother tongue; or (2) the language you “habitually” use to communicate.
This protection is most visible in the employment rights granted by the Charter of the French Language. It forbids employers from firing or refusing to hire unilingual French-speakers because they do not have skills in another language (such as English).
- At the same time, there is no equivalent protection for unilingual English-speakers. This means that firing or refusing to hire a unilingual English-speaker in Quebec, because they do not have adequate French-language skills to do the job, is not considered discrimination.
- However, it is discrimination for an employer to demand an English-speaker have French-language skills for a job where such skills are not required (such as some data entry clerks, building custodians, or manual labour positions, to name a few).
Notably, the Quebec Human Rights Tribunal has ruled that in certain circumstances, it could be discriminatory for an employer to fire or refuse to hire an English-speaker with adequate French-language skills to do the job simply because the worker: may be more at ease working in English than in French; or does not speak French with a “Québécois” accent.
What is intersectional discrimination, and how may it affect English-speaking Quebecers?
Despite long-lasting misconceptions and outdated stereotypes, English-speaking Quebecers (defined as English being their first official language spoken) are not a homogeneous monolith of Caucasian Protestants with Anglo-Saxon origins. In fact, the province’s English-speaking community consists of diverse peoples from a wide array of ethnic, racial, religious, and cultural backgrounds.
For instance, according to the 2016 federal census, 34% of Quebec’s English-speaking population is part of a visible minority, compared to just 10% of the French-speaking population of the province.
English-speakers in Quebec have identities that may combine many different personal traits like language and race. Minority opinions of the Supreme Court have acknowledged that two or more of these characteristics can therefore overlap, or “intersect”, to create a unique lived experience and, by extension, a distinct experience of discrimination.
- As an example, someone who is both English-speaking and of East Asian descent may experience discrimination differently than a Caucasian English-speaker or an East Asian French-speaker.
- Another example could be discriminatory behaviour by the police towards a young Black man, which may be experienced differently depending if the man is a native French- or English-speaker.
According to the Ontario Human Rights Commission, an intersectional analysis of discrimination “addresses the fact that discrimination has evolved and tends to no longer be overt, but rather more subtle, multi-layered, systemic, environmental and institutionalized.”
Despite this innovation in anti-discrimination legal analysis, the Supreme Court has yet to rule in favour of an intersectional discrimination claim. More locally, the Quebec Human Rights Tribunal has also heard intersectional cases, but has not yet ruled in favour of a claim based on multiple, overlapping grounds of discrimination.
Despite the lack of court hearings, this contextual approach to understanding discrimination continues to gain momentum in Canadian and Quebec courtrooms. Many legal experts are hopeful that intersectionality will therefore come to positively shape the future of anti-discrimination law in Canada.
What is systemic discrimination, and how may it affect English-speaking Quebecers?
The current organizational structure of Canada’s federal and provincial governments—as well as each of their departments and institutions—was established in the 1800s exclusively by the descendants of colonial settlers, all of whom were male, of Christian faith, and of European origin.
These “systems” of government—such as their laws, policies, police practices, health and social services, courts, and elections—were made for the benefit of the small group of men that had built them, without consideration of non-Caucasian, non-Christian, or female members of their new society. This created structures of inequality that have lasted until the present day, whereby people who were not historically part of Canada’s ruling class were kept at a social, economic, and political disadvantage.
The Canadian and several provincial governments have recognized this inequity as systemic discrimination. The term has been defined by the Ontario Human Rights Commission as “patterns of behaviour, policies or practices that are part of structures of an organization, and which create or perpetuate disadvantage for racialized peoples.”
Similarly to Ontario, the Quebec Human Rights Tribunal (QHRT) has defined systemic racism as “the cumulative effects of disproportionate exclusion” that results from “the combined impact of attitudes marked by often unconscious biases and stereotypes”. These prejudices can therefore create “policies and practices generally adopted without taking into consideration the characteristics of the members of groups” otherwise protected in anti-discrimination law.
Considering that 34% of Quebec’s English-speaking community is part of a racial minority, one in three English-speakers in the province may be exposed to systemic racism on one or more occasions in their lifetime.
Despite the QHRT’s formal recognition of systemic discrimination, the Quebec government has yet to publicly recognize its existence in the province. However, there are several recorded instances of systemic discrimination in recent years. Such incidents include:
- The racism and prejudices that contributed to the accidental death of Mrs. Joyce Echaquan at a Joliette hospital in September 2020, highlighting the historical mistreatment and neglect of Indigenous patients in Quebec’s healthcare institutions; and
- The arbitrary detention of Mr. Joël DeBellefeuille by Longueuil police in 2012, echoing the problem of racial profiling of Black Quebecers by law enforcement (see our explanation of Racial Profiling for more information).
Systemic discrimination continues to be a problem that many of Quebec’s public institutions acknowledge as a legitimate concern they must work to resolve. Affirmative action regulations, for example, which aim to counter systemic discrimination in different organizations, like in schools, are already in effect in Quebec.
Nevertheless, there continues to be much debate over the very definition of the term and to what extent it is present in Quebec society.