I read Joanne D’Souza’s opinion on Bill 62 passed by the Quebec government in the Obiter Dicta. I disagree with her analysis of the bill, but more importantly, I do not believe that Bouchard-Taylor’s report should serve as a guide for the Quebec society. Fundamentally, however, Joanne is right that the State should not dictate what an individual should wear.
Having grown up in Quebec and being a visible minority, I see the Bouchard-Taylor report as a hidden mine. Through a close reading of the recommendations of the Commission, it is possible to see that the Commission’s report is fundamentally hostile to the multiculturalism ideal of Canadian society. Initiated following an outcry on what were believed to be “unreasonable” accommodations, the Commission chaired by Bouchard and Taylor conducted extensive hearings. Many individuals, organizations, but also so-called “experts” on Quebec identity, religion and integration were heard. Its report was later released in 2008. Although supporting the integration of new immigrants and criticising the public’s hostility towards the hijab, the report was written through the perspective of a form of zealous “interculturalism” and also proposed an outright ban of all ostentatious religious symbols for public servants in positions of authority. The ban would apply to teachers, judges, police officers, and prison guards. If this policy were really implemented, religious minorities wearing turbans, hijabs, burka, and kippahs would all be banned from holding these positions in the name of state secularism and interculturalism.
The term “interculturalism” is often used in Quebec politics and academic circles and is often used to criticise, and contrast with, multiculturalism. Quebec is one of the rare French-speaking territories in North America, and French Quebecers are undoubtedly very concerned about losing the uniquely Quebec way of life. Although it was the Right Honourable Pierre Trudeau, a Quebecer, who first officially promoted the ideals of multiculturalism Canada-wide, many Quebecers were concerned that the French-speaking community would be relegated to the position of other cultural communities. French Quebecers want the French language and the uniquely Quebec way of life to be considered as the language and way of life of the majority. This is, of course, a legitimate concern and policy matter. However, interculturalism has now been more and more used to justify the imposition of a specific way of life with total disregard for the notion of liberal democracy enshrined in the Canadian Constitution. Interculturalism is not at all wrong in itself by promoting more cross-cultural integration, but it is different when the notion is used to reject the varied cultural manifestations of different ethnic and religious communities. The Bouchard-Taylor Commission, through the zealous embrace of interculturalism and the rejection of multiculturalism, proposed imposing significant hurdles on religious minorities from accessing public positions.
It was predictable that a report commissioned during an outcry against reasonable accommodations would take this route. Many Quebecers were incredibly unhappy of the Multani v Commission Scolaire Marguerite-Bourgeoys decision by the Supreme Court of Canada in 2006 that allowed Multani to bring a kirpan to school. A few municipalities, following the decision, adopted regulations that would ban the stoning of women, the bringing of a knife to school, the wearing of face coverings and many other laughable regulations in the name of public safety. Undoubtedly, the vast majority of these regulations would be either void or unconstitutional. The public, however, wanted solid legislation that would explicitly ban most religious accommodations, especially those believed to imperil public safety. Bouchard, the co-chair of the Commission, following the release of the recommendations, indicated that he believed that in order to better protect Quebec’s social fabric, Quebec should secede from Canada. As well-educated he was, he was certainly well aware that such an outright ban would not be possible under the Canadian Constitution, without the use of the notwithstanding clause. It is, of course, implied that this aims fully reject the notion of multiculturalism for a new kind of integration of newcomers, where values – not of liberal democracy – are imposed on them.
For the governing Liberal Party of Quebec, which received the vast majority of visible and ethnic minorities’ votes, the Bouchard-Taylor report is simply a no-go. The Liberal government has thus shelved the idea to ban ostentatious religious symbols for all public servants in positions of authority, but that was not enough to stop the discussion, and opposition parties pushed for more drastic measures. In 2014, the notorious Charter of Values was proposed by the governing separatist party, the Parti Quebecois, and used to prop up an election. The Charter of Values notably forbade the wearing of any religious symbols by all public servants during their work (section 5 of the Charter of Values), not only those in positions of authority as proposed by the Bouchard-Taylor report. The face must also be uncovered for the receiving of public services. The Charter of Values indicated in section 13 that sections 3 to 6 are essential conditions to the employment contracts in public bodies. The Charter of Values also sought to introduce the concept of state secularism (used in the Bouchard-Taylor report to justify the outright ban of religious symbols for public servants in a position of authority) and required accommodations under the proposed Charter of Values to take into account this concept of state secularism. However, it is worth mentioning that the beautifully large cross behind the speaker of the provincial Parliament is left untouched in the proposed Charter of Values. Gladfully, the Parti Quebecois lost the election to the Liberal Party of Quebec and this Charter of Values died.
The new flawed Bill 62 by the Liberal Party of Quebec is fundamentally different from the Charter of Values, as it applies the concept of “religious neutrality” of the State, rather than that of State secularism; but Bill 62 nevertheless imposes undue bureaucratic hurdles on religious minorities. Religious neutrality of the State has been defined by the Supreme Court of Canada in Mouvement laique quebecois v Saguenay (City) as not favoring one religion over others. Bill 62 requires providing and receiving public services with faces uncovered, but accommodations are possible only if they do not negatively affect the religious neutrality of the State. It is worth noting that the main opposition parties, the Parti Quebecois and the CAQ, want to allow no accommodation. However, under Bill 62, all requested accommodations will likely be granted because the offering or receiving of public services with the face covered will seldom impact the State’s overall religious neutrality. In contrast to what Joanne wrote, however, there is no specific accommodation request path under the Quebec Charter. Like in Multani v Commission scolaire Marguerite-Bourgeoys, a request for accommodation is usually initially submitted directly to the government organization in question. There is nothing in Bill 62 or other legislation that obliges the request to be in writing. If Bill 62 were later applied to public transportation, we can imagine a bus driver asking all boarding passengers to take off their sunglasses, scarves, etc. Someone with a face covering and a genuine religious belief would refuse and outline orally the reasons why he/she will not take it off. There will undoubtedly be a small number of overzealous bus drivers or agents of the Crown, and these overzealous public servants will likely lead to litigation.
This new Bill 62 undoubtedly burdens ethnic and religious minorities wearing face-coverings with bureaucratic hurdles of being asked to remove the face covering, of having to justify for accommodations, and of having to fight occasional court cases. Nevertheless, in the current atmosphere in Quebec, any of the large opposition parties would likely put in place more limitative legislations than Bill 62, if they were elected to form the next government. As a visible minority, I would much rather have the Quebec Liberal government, which has consistently garnered the majority of votes from visible and ethnic minorities, to legislate on the matter than people of the likes of Bouchard who impose values that directly conflict with the notion of liberal democracy. I also wish that this new law would be declared unconstitutional so that future opposition parties will not attempt to craft more radical versions of it. In the alternative, even if Bill 62 were constitutional, it is not as bad as alternatives proposed by other political parties in Quebec.