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Religious inclusion in legal profession | Nour Farhat and Derek Ross

Tuesday, February 18, 2020 @ 11:48 AM | By Nour Farhat and Derek Ross

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Nour Farhat
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Derek Ross
We are both openly religious. We are also lawyers. We see no contradiction in this. To the contrary, our faith motivates and supports us in meeting our commitment to “fulfill the duties of the legal profession with honesty and justice” and to “champion the rule of law and safeguard the rights and freedoms of all persons” (as set out in the Quebec and Ontario oaths, respectively).

In this regard, we’re no different than every other lawyer motivated by their philosophical conceptions of, and commitments to, what is true and just and right. As the Supreme Court has affirmed, this “lens through which people perceive and explain the world in which they live” is an “integral part of each person’s identity” [Mouvement laïque québécois v. Saguenay (City) [2015] S.C.J. No. 16]. Or as former Chief Justice Beverley McLachlin put it: “Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door” [Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.J. No. 87].

Still, those of us who are open about our religious identity are sometimes treated differently or even suspiciously. That may be expected, in some contexts — but such differential treatment should never be institutionalized in the law. The Charter affirms that all are equal before the law and guaranteed the equal protection and benefit of the law without discrimination based on their religion. Unfortunately, this is not always so in reality. A recent case in point is Quebec’s Bill 21, a law which purports to advance the “equality of all citizens” but does the exact opposite.  

Bill 21 prohibits entire categories of employees, including many lawyers, from wearing religious symbols in Quebec. For some, wearing a religious symbol is not a matter of “preference” but is a core religious observance. Bill 21 effectively bans them from various spheres of work, for reasons entirely unrelated to merit or job performance.

Bill 21 also disproportionately impacts those religious minorities whose faith commitments involve symbolic expression.

Nour wears a hijab as an expression of her Muslim faith. As a result of Bill 21, she is prevented from working for the Quebec government as a prosecutor, a government lawyer, research counsel or in any other position exercising the “function of lawyer [or] notary.” Nor can she work in a legal aid clinic, among other areas. These broad exclusions have nothing to do with her qualifications, training, capabilities or experience — she is excluded solely because of her religious identity.

Bill 21 forces religious lawyers like Nour to make an impossible “choice”: we can either be true to our religious identity, or we can practise law in our area of calling. We can not do both. Bill 21, it seems, does see a contradiction between being a lawyer (at least in the public sphere) and being religious (at least openly). Even if our religious identity has no impact (or even a positive impact!) on our work, its expression, including in the most benign form, could disqualify us from various practice areas in Quebec.

It may sound extraordinary, if not unbelievable, that Canadian lawyers can be excluded from areas of practice based solely on religious identity. But it is true nonetheless. And to date, with some notable exceptions, the legal profession has been somewhat understated in response. Many may be unaware of the breadth of Bill 21’s provisions or are unsure how to best engage or respond. Whatever the reason, we believe we have an important opportunity — an obligation even — to respond now, and to lead with a strong collective voice in defence of colleagues who are unfairly impacted by this legislation (or any policy like it).

On Feb. 19, we will be presenting two resolutions at the Canadian Bar Association’s (CBA) annual meeting. The first resolution would expressly affirm the right to equality for religious lawyers, and condemn any government initiative or policy, including Bill 21, which would deny equal opportunities in the legal profession based on religion. The second resolution would have the CBA ensure that its policies specify religion as a ground of inclusion in initiatives designed to advance equality and diversity. We invite lawyers nationwide to join us in support of these resolutions, either in person, at a regional “hub,” or virtually from a personal computer.

As lawyers, we share a core commitment to building a more just society. We may not always agree on how best to do so, which is fine — healthy, in fact. Respectful disagreement and the accommodation of difference are what makes our pluralistic democracy not only distinct, but possible. This is also why we should be able to find common ground in opposing religious discrimination in the law.

Regardless of whether we share their religious commitments, we mustn’t sit idly by while colleagues are excluded from public service. As the Supreme Court has affirmed, state neutrality, properly understood, “means respecting the right to hold and manifest different religious beliefs. A secular state respects religious differences, it does not seek to extinguish them” [Loyola High School v. Quebec (Attorney General) [2015] S.C.J. No. 12].

The legal profession is enriched by members from diverse backgrounds and communities. All should feel welcome to participate equally in the public square and know that our profession supports their right to do so. We invite your support in making this collective statement possible.

Nour Farhat is a lawyer in civil and corporate litigation and constitutional law at Gattuso Bourget Mazzone in Montreal. She has a strong interest in matters related to human rights, criminal and constitutional law. Derek Ross is a constitutional lawyer and executive director of Christian Legal Fellowship, Canada’s national association of Christian lawyers and law students.

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