N.B. This post was prepared prior to the August 2017 amendments proposed by the Liberal Party of Quebec.
As part of its campaign promises, Quebec’s Liberal Party had committed to a bill that would ensure the “neutrality” of the state and provide a more progressive alternative the the Parti Quebecois’ repressive Charter of Values.
Bill 62 was the result, snappily entitled, An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies. No one disputes that governments should be neutral, nor that public servants should demonstrate neutrality in carrying out their duties. Both principles have been upheld by the Supreme Court of Canada as part and parcel of the guarantee of religious freedom in the Canadian Charter of Rights and Freedoms. The 2015 decision in Loyola High School v. Quebec (Attorney General) reiterated the principle, while making it clear that “neutrality” cannot be used to coerce individuals or groups into renouncing aspects of their faith that are consistent with religious freedom.
Not the worst option
The provincial Liberal government is understandably concerned about presenting a more reasonable alternative to the more muscular proposals being made by the CAQ, which continues to offer a nativist approach to handling neutrality and supports the Bouchard-Taylor list of categories of professions who should not be allowed to display any religious affiliation. The Parti Québecois continues to flirt with “Quebec identity” and values.
Regardless, Bill 62 has provoked little of the concern or outrage that accompanied either the Charter of Values or the other iterations of Quebec-values bills that have littered the legislative landscape since the Bouchard-Taylor commission.
So what is there to be concerned about in Bill 62?
First and foremost, the language and tone of the Bill treats accommodation as presumptive infringement of state neutrality. However, we have decades of case law saying the precise opposite, namely that accommodation, including religious accommodation, is the embodiment of non-discrimination. It supports religious freedom, as well as the neutrality of the state.
Second, the “framework” for religious accommodation that would apply to the state (the Quebec state, not the federal government) makes it very easy to deny a religious accommodation request. All a government employer would have to do is argue that the request somehow interferes with “proper operation” of the unit, department or ministry, a term that is undefined. It is worth mentioning that most of the rest of Canada uses a clear undue hardship standard that requires much more than a bald assertion of inconvenience in order to deny a request. If Bill 62 is passed, it would make the Quebec the weakest jurisdiction in Canada when it comes to religious accommodation. It would also (likely) be a lower standard than the one that applies to other groups that seek accommodation, including people with disabilities, resulting in a built-in systemic bias against people of faith.
Third, like the Charter of Values, the Bill also threatens to reach into organizations that are receiving government funding, such as community groups, NGOs and social welfare organizations. This aspect has been ignored in the public debates but it merits consideration in terms of the wider threat it posses to equality rights.
Fourth is the niqab issue. Most people do not like niqabs much; the government has communicated Bill 62 as a bulwark against waves of niqab-wearing public servants and citizens who seek services. This is a political move, designed to make the bill palatable to the Quebec-values crowd, but it is overblown and pointless. Even in strict Muslim countries, key services that require visual identification (such as passports, etc.) require women to display their faces to a female officer. (I just returned from the United Arab Emirates where the airport security line includes a stream for niqab-wearers with a few separators so permit women to unveil, which they are legally required to do. And this, in a strict Islamic state. The line was empty and the officer told me that anyone wanting to use dedicated stream would have to wait a bit because the female officers were busy.)
Tellingly, Bill 62 does not apply to municipalities, where most accommodation requests like boarding a bus would take place anyway. More important, how many niqab wearers are we talking about? Is this a real problem in Quebec?
It remains a mystery to me why women always bear the brunt of efforts that are ostensibly aimed at achieving gender equality as part of a larger framework of Quebec values.
For more on this issue, see my Op Ed in The Montreal Gazette.