Could the Montreal Canadians have a policy of positive discrimination in order to increase the number of French-speaking players from Quebec

This question struck me as I read Rejean Tremblay’s chronicle in La Presse, Le CH abuse des Québécois.

There would be three ways of implementing such a policy.

First, the Habs could have an exclusively French Canadian team, thus excluding all the players having any other origin – I spare you the debate as to what level of  fluency in French one should have. Now, can an employer legitimately discriminate against a group in particular? To this effect, the Charter of Human Rights and Freedoms (R.S.Q., chapter C-12) says that:

16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

However:

20. A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.

Article 20 creates a double exception for (i) a distinction based on the aptitudes or qualifications required for an employment and (ii) a distinction for certain charitable institutions. One must conclude that in both cases, a discriminatory policy against all groups but French Canadians would go against the Charter. As a matter of fact, the Montreal Canadiens are certainly not a charitable institution, nor is French an essential language to master for any hockey player: a unilingual Russian player could very well play in the NHL, so long as he contributes to his teams’ success.

The second possibility would be to have a policy of positive discrimination in favour of French speaking people from Quebec, whether by way of a policy saying that “for an equal talent, the French speaker is prioritized” or by way of establishing a quota of players (for example, there should be 5 French Canadians in the line-up). In the first case, it would be doing an indirect negative discrimination and would thus probably not be legal.  In the latter, the only similar case that I have found was in the Act respecting equal access to employment in public bodies (R.S.Q. c. A-2.01). However, this case is far from being applicable to the Habs: it only applies to public bodies and pursues the following goal:

1.  This Act establishes a special framework to provide equal access to employment in order to remedy the situation experienced by persons belonging to certain groups discriminated against in employment, namely women, handicapped persons within the meaning of the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration ( chapter E-20.1), aboriginal peoples, persons who are members of visible minorities because of their race or the colour of their skin and persons whose mother tongue is neither French nor English and who belong to a group other than the aboriginal peoples group or the visible minorities group.

However, we are concerned with the opposite situation. I have not heard of any equivalent law that would be applicable in the private sector.

The third possibility would be for the government to enact a legislation forcing the Habs to hire a minimum number of French Canadian players. This law could be valid, although I must confess that I did not consider this question under the Canadian Charter of Rights and Freedoms at length. However, the adoption of such legislation is highly unlikely: it would be an undue interference by the government in the business of a team who, after all, made it all the way to semi-finals in the last playoffs.

Finally, I agree with Mr. Tremblay that the best way to see more French-speaking players with the Habs would be through the return of Quebec City’s Nordiques: there would be an all-out war between both teams to conquer the market – a war which could be won by appealing to hearts (and language) of the fans!