Lost in Translation? Bill 21, International Human Rights, and the Margin of Appreciation.

• Author: Megret, Frederic

Introduction I. Transnational Influences on the Bill 21 Debate A. Deprovincializing Bill 21? B. Some Preliminary Caveats II. Speaking of the Margin of Appreciation and Its Dialects A. The Substantive Margin and the European "Consensus" B. The Procedural Turn in the Margin of Appreciation Conclusion Introduction

The adoption of Bill 21, the (in)famous Loi sur la laïcité de l'État, (1) which bans the wearing of religious symbols in the public service in Quebec, and the fracas it has caused are an invitation to ponder the limits of religious freedom, the nature of majority rule, or the definition of secularism. Rather than address these issues on their own terms, however, this essay seeks to bring attention to the various national, regional, and international legal frames of reference within which they arise. It aims to show how the way these frames are used can be highly determinative of how one addresses these underlying issues.

If nothing else, Québécois and Canadians should care about international law on this matter because it is highly likely, in the event that the law survives constitutional review in Canada, that it will be further challenged internationally. Indeed, the domestic constitutionality of a law has never been, per se, an argument for its international legal validity. (2) However, the point is that the influence of international law is already visible in the public debate surrounding Bill 21 and extends much further than the simple question of whether the proposed law "violates" international law or not. In Quebec, the transnational influence of ideas about rights has occurred most spectacularly through the importation of mostly French views of laïcité that have been foregrounded with much vigour in the public debate. (3)

But the existence of another national model that seems inspired by the same principle as Bill 21 does not provide conclusive evidence of the law's validity in Quebec--especially since the French model has itself been criticized as problematic. (4) This is why some of the more sophisticated defenders of Bill 21 have not failed to point out that the French model and others like it that have banned various forms of religious symbols in the public sphere have been challenged before the European Court of Human Rights (ECtHR), only to see states win. (5) Superficially at least, as will be discussed in more detail in this essay, this seems like a remarkable validation of the case for Bill 21. But the basis on which such invocations of international case law are made needs to be clarified. In this essay, I suggest that the fact that international human rights bodies, notably the ECtHR, have occasionally allowed religious symbol bans does, in fact, less work than is assumed by proponents of Bill 21--although it also probably does more work than opponents concede. My more general contention will be that the import of international human rights law into the Quebec debate, even assuming a best-case scenario in which that law is applicable and binding in Canada (which, in the case of the European Convention on Human Rights, it clearly is not), would require significantly more nuance than has been displayed in the debate so far.

That debate, in particular, has been marred by inadequate "translation" of what that a priori sympathetic case law means in its own context, let alone what it might mean in the Canadian context. I suggest that the ECtHR case law is the legal equivalent of a classic linguistic faux ami: bearing an uncanny resemblance to something familiar but in fact not (quite) the same thing. Even the meaning assigned to such religious symbols as the "veil" is heavily constrained by the contexts within which the issues surrounding it arise: there are as many conceptions of the veil--imagined, feared, and fantasized as it may be--as there are jurisdictions or purposes for its regulation. The broader point is that if we are to have international and inter-regional dialogue about rights--a process which in principle should be encouraged--then we must invest significantly in an understanding of how each vernacular of rights functions on its own terms, lest we mistake our grappling with rudiments of a foreign language for proficiency in it. (6)

In Part I, I highlight how the debate on banning the veil in Quebec has been both enriched and subtly misled by references to international law, particularly European human rights law, showing how a number of cases--taken individually and at face value--seem to reinforce the argument for the legality of limited bans of religious symbols. In Part II, however, I contextualize the outcomes of these European decisions as part of the ECtHR's "margin of appreciation" reasoning. This renders significantly more complex the import of arguments taken from the European context to the situation of Quebec and Canada. Whatever international human rights case law tells us about the validity of banning the hijab or the niqab in certain contexts must be deeply adjusted for local specificities that do not necessarily apply in Canada. I conclude with a conceptualization of international human rights law as a body of law which allows us to sharpen our sense of the stakes of domestic and localized struggles by seeing them, as it were, "from outside" rather than as a ready-made prescription for complex legal and political dilemmas.

1. Transnational Influences on the Bill 21 Debate

   Shortly after its election in 2018, the provincial Coalition Avenir Québec (CAQ) government proposed Bill 21, the so-called Loi sur la laïcité de l'Etat. (7) The law was enacted in June 2019. (8) It proclaims Quebec's secularism and requires the government's neutrality in relation to religions. Most notoriously, it requires certain categories of civil servants, notably those exercising coercive authority s uch as police officers, judges, and prison guards, to refrain from wearing any visible religious symbols. All civil servants are prohibited from covering their faces when providing public services. (9) The law comes on the heels of more than a decade of political debates about the "reasonable accommodation" of religious minorities, (10) including one influential commission, (11) several failed legislative proposals, (12) as well as one adopted law. (13)

   In Canada, this is largely a Quebec-based debate. It is one that is deeply embedded in the province's rapport with the rest of the country and its sense of identity, although it has had echoes in other provinces as well. (14) It has affected a myriad of constituencies and raises questions about freedom of religion, discrimination against religious minorities, freedom of expression, equality, liberty, and security of the person. The bill has significant--although far from universal--support in Quebec. It has provoked an often fierce reaction both within and outside Quebec from religious minorities who stand to be affected by it and others who see it as an odious encroachment on basic liberties. (15) It has led to so far unsuccessful litigation to overturn it in Quebec. (16)

   But the law, or at least some of the principles behind it, have also been defended passionately by secular-minded liberals and some feminists. (17) One of the main arguments in the "secularist" camp has been that the law is far less anomalous than it is often portrayed as being and that it is, in fact, inspired by the French approach to laïcité from which it derives a certain legitimacy. I leave aside the vast and distinct debate about whether France's approach can be imported into the Canadian context wholesale and on what basis (not to mention the contested character of laïcité and its evolution in France itself). However, those who invoke the French case must concede that it is a mere domestic precedent, with little legal traction by itself.

   Indeed, faced with a barrage of opposition, it was not long before pro-Bill 21 commentators picked up on a vast body of a priori sympathetic international human rights case law. (18) The unique advantage of that body of law is that it shows the French model as far less of an outlier than it is sometimes described as being. The ECtHR, in particular, had found that the banning of the burqa in France or Belgium was not illegal, nor was the banning of the hijab in Turkish universities or Swiss kindergartens. As one commentator had put it much earlier in the debate on "reasonable accommodation":

   Le Québec se mettrait donc au banc de l'Occident et de l'ONU? C'est simplement faux. Voici la vérité, ... Elle est bien différente de ce que prétendent MM Bouchard, Taylor et tous ceux qui voudraient culpabiliser les Québécois de tenir, chez eux, un débat qui a cours dans plusieurs autres démocraties avancées, dans le respect des normes intern ation ale s. (19) In the same spirit, a letter addressed to the CAQ leader by twenty-five Québécois lawyers supporting Bill 21 noted that

   [c]e même objectif de laïcité, de nombreux autres États dans le monde l'ont inclus dans leur droit. Le Québec ne serait certes pas le premier État à adopter des règles de droit pour restreindre le port de symboles religieux par ses fonctionnaires dans l'exercice de leurs fonctions. A l'échelle internationale, de telles mesures ont été soumises dans de nombreux cas à un processus de contrôle judiciaire, tant devant les tribunaux nationaux que devant la Cour européenne des droits de l'homme, et ont été jugées valides.... L'expérience européenne en atteste, l'interdiction de symboles religieux chez les fonctionnaires de l'État n'est pas un crime contre l'humanité et peut s'avérer une mesure législative tout à fait légitime et nécessaire. (20) Many others have pointed to the European case law as showing Bill 21 in a much less negative and isolated light. (21) This train of thought eventually made its way into the reasoning of Justice Mainville in his separate opinion in a Quebec Court of Appeal decision on an application for a provisional stay of the bill. As...