Québec’s Bill 62 discriminates against a minority of a minority
In 2016, the Québec government introduced Bill 62, An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies. If passed, it will require personnel of public bodies to perform their jobs with their faces uncovered. Those receiving services must do the same. Most employees and members of the public do not cover their faces as a regular practice. However, one would be hard-pressed to identify someone as affected as Muslim women who wear the niqab.
In Withler v. Canada (Attorney General), Chief Justice McLachlin and Justice Abella noted it is easier to prove discrimination where a law is discriminatory on its face, compared to one that “purports to treat everyone the same,” but in actuality “has a disproportionately negative impact on a group or individual that can be identified by factors relating to” grounds of discrimination. In this case, the grounds are religion and sex. Bill 62’s face coverings provision does not explicitly target Muslim women; all personnel and those receiving services must keep their faces uncovered. Yet the law in effect creates a distinction, with most of Québec society on one side of the line and a small group of women who believe they are religiously bound to wear the niqab on the other.
Bill 62 does consider accommodation requests. If the bill passed in its present form, the worst case scenario is that women who wear the niqab will be forced to choose between their sincerely held religious beliefs and meeting their basic human needs – such as receiving healthcare or pursuing an education. The best-case scenario is that these women would have the burden of enduring an accommodations request process under the Québec Charter of Human Rights and Freedoms, and would have to be approved, simply to access the same public services as everyone else. While the majority of members of Québec society would be no more barred than before from pursuing public sector jobs or accessing necessities, members of a minority group would have an additional hurdle to overcome before they could do the same.
In R. v. Big M Drug Mart Ltd., the Supreme Court of Canada’s first case on freedom of religion under the Canadian Charter of Rights and Freedoms, Justice Dickson stated for the majority: “The Charter safeguards religious minorities from the threat of ‘the tyranny of the majority.’” Given Statistics Canada’s 2011 National Household Survey found only 3.2% of Quebec’s population identified as Muslim, veiled Muslim women would be a minority of a minority. They would be the group in need of safeguarding.
Neither the face coverings provision nor the other clauses in Bill 62 are new, with successive Québec governments having made similar attempts. The current face coverings provision and religious accommodations framework are modeled on the Québec Liberal government’s 2010 Bill 94. It did not pass into law, as the Liberals were defeated in 2012 by the Parti Québecois (PQ). Not to be outdone, in 2013 the PQ introduced Bill 60. Commonly known as the Québec Charter of Values, it surpassed its predecessor and successor by completely prohibiting personnel of public bodies from wearing religious objects or covering their faces. Bill 60 also failed, as the Liberals returned to power. Both Bills 94 and 60 made it a point to single out face coverings. Regardless of whether the current bill passes, these legislative attempts demonstrate pervasive concerns of state-enabled discrimination operating in Québec.
Especially concerning is the license this legislative push gives to members of the public. According to the National Canadian Council of Muslims, while it is difficult to create a direct correlation between hate crimes, media coverage and government stances, Canada did see an increase in anti-Muslim hate crimes when the niqab became an issue during the 2015 federal election. Bill 62 pushes veiled Muslim women out of the public sphere and could potentially fuel violence.
What should the Québec government do instead? A decade ago, the Bouchard Taylor Commission answered the question. At the time, Québec was so worried about the takeover of religious minorities that the provincial government established the Commission to take stock of accommodation practices. The title of the Commission’s report says it all – Building the Future: A Time for Reconciliation. The Commission called on the government to fight inequality and discrimination by specifically addressing the under-representation of ethnic minorities in government, combatting Islamophobia and other particular forms of discrimination and supporting immigrant women. That is the advice the creators of Bill 62 should heed.