Bill 62, which is now law, has three central functions: it affirms the religious neutrality of the state, prohibits people from covering their faces when giving or receiving public services, and creates a legal framework for accommodating religious minorities.
Its title is: An Act to Foster Adherence to State Religious Neutrality and, in Particular, to Provide a Framework for Requests for Accommodations on Religious Grounds and Certain Bodies. (This commentary refers to the enacted legislation as the Act or Bill 62)
The provisions of the Act that deal with the ability to ask for accommodation on religious grounds or the requirement of face-covering apply mainly to public servants and citizens who receive public services in Quebec. While Bill 62 did not originally apply to cities and towns, amendments now extend the application of the Act to all municipalities in Quebec with the exception of designated First Nations.
In a document released a week after Bill 62 was made law, the Minister of Justice attempted to explain that the Act does not regulate public space in general. Nonetheless, it applies to many public spaces where interactions take place, including in democratic spaces like the National Assembly and municipal elected offices, municipal parks and libraries, universities and CEGEPs, and public transit. Government agencies and corporations like the SAQ are covered. Community organizations and service providers who receive public subsidies are covered by the bill. Examples are cited below.
Transportation: The Act applies to all public transit authorities at the municipal and regional levels that are under provincial/municipal jurisdiction.
It does not apply to national transportation services like VIA Rail.
Recreational Facilities: Bill 62 applies to municipalities, parks, swimming pools and most community centres, all these facilities would be subject to the bill.
Education: Bill 62 applies to school boards, CEGEPS, universities. and daycare centres, as well as home-based child care that receives a government subsidy. Commissioners of school boards are also covered.
Law enforcement Peace officers are considered to be “personnel members” of a public body covered by the bill.
Health and Social Services: The bill applies to all but a small number of designated health and social services, including CLSCs. Entirely private medical clinics are exempt.
Interestingly, an amendment to the bill indicates that health professionals will be able to refuse to provide care or to make a referral based on personal convictions, to the extent permitted by law.
Community organizations and service delivery organizations: Non-profit organizations that receive contracts or subsidies from the provincial government “may” be required to respect the duty of religious neutrality.
No one in Canada 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 of the guarantee of religious freedom in the Canadian Charter of Rights and Freedoms and are not an exception to freedom of religion.
The 2015 decision in Loyola High School v. Quebec (Attorney General) reiterated the principle, making it clear that “neutrality” cannot be used to coerce individuals or groups into giving up aspects of their faith that are consistent with religious freedom.
PROHIBITION ON FACE COVERING
This provision has received the most media commentary and attention by far. It is widely understood as being an attempt to force niqabi women from receiving any public service. Section 9 also provides that the personnel of a public body must carry out their functions with their face uncovered.
It is noteworthy that section 9 appears in the part of the Act which creates a complete ban on face coverings in giving or receiving services; it is not in the part of the Act which permits citizens to request accommodation. This feature of the bill suggests that no one is entitled to even request accommodation with respect to a face covering.
The Supreme Court of Canada decided in NS that an absolute ban on face coverings, without consideration of the competing values and interests in the particular context, is unconstitutional. The Minister claims that she has legal opinions saying otherwise, but has refused to disclose them. Human rights and legal bodies who have submitted briefs to the Department of Justice in connection with this bill, have clearly indicated their concerns regarding the constitutionality of this provision.
The government claims that this ban is designed to facilitate communication and ensure public security, as well as to identify the person. The facilitation of communications as a general defence to the obligation to accommodate a religious request is a novel justification in law.
There is no criterion provided in the bill with respect to how much of the face must be covered/uncovered. During the October 24 press conference held by the Minister of Justice, she suggested that all of the person’s facial features must be revealed, including or especially the person’s eyes, so that the person’s expression can be assessed. This, presumably, would mean that the niqab is actually the least problematic of face coverings, as opposed to sunglasses, ski visors and the like, none of which are religious in nature.
The fact that Section 9 is intended to target a particular group of people (observant Muslim women) who are not even mentioned in the bill, most of whom would be members of racialized minorities, is an example of the type of systemic discrimination that is currently being studied by the Quebec government.
The bill provides that anyone who seeks to receive services must also do so “during the giving of the service”. Regardless, the normal and common meaning would imply that the face covering must be removed during the entire time that the service is being provided. However, during the October 24 press conference, Minister Stéphanie Vallée backtracked, saying that it was only at the moment the service was being requested that the face had to be uncovered. Clarifying “principles” were published on that day, reiterating that it was only at the moment of exchange with a public official when the services were being requested that this criterion would apply.
While the correction was appreciated by many, it is unfortunately inconsistent with the drafting of the bill, at least in French. It is not clear whether an amendment will be required to clarify this part of the bill.
The Minister of justice has said that no one will be “chased” from a public service for having a face covering. She also said that the face must be uncovered at the time the person requests the service. Presumably, this suggests that people will be barred form services and not “chased” from them.
It is unclear how or whether the bill will be enforced at all. Inasmuch as the Minister has pointed out that municipal officials, SAQ staff and librarians, for example, already have the legal tools to demand identification and to prevent access to services, it is far from clear what the point of Bill 62 is. A denial of services was contemplated by the Minister, which seems to contradict the assertion that no one will be turned away once in the service.
The “framework” for religious accommodation is the most significant in terms of the likely number of people affected, and the one that has received the least attention to date.
It would essentially apply to employees of both the provincial and municipal public sectors, as well as the agencies and sectors mentioned at the outset of this article.
The new rules make it very easy to deny a religious accommodation request, such as a request to adjust a schedule to allow for time for prayer, time to attend a religious service, changes to uniforms, and the like.
All the employer has to do is argue that the request somehow interferes with proper or good functioning of the “unit”. 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. In Ontario, undue hardship can only be claimed in relation to cost, safety and health, and nothing else. Similar rules apply at the federal level, although there have been cases where the common law has gone somewhat further. But in Canadian law to date, the principle of undue hardship is interpreted as a narrow exception to the general principle of accommodation. Bill 62 turns the equation on its head and frames accommodation as a request that can easily be refused, rather than as the implementing rule for achieving equality.
In schools, requests by students for religious accommodation are similarly restrictive, based on specific standards like compulsory attendance and other standards that are more vague like “the mission of schools”.
Bill 62 makes the Quebec among the weakest jurisdictions in Canada when it comes to religious accommodation. It sets a lower legal 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.
Finally, the Bill’ s application to organizations that are receiving government funding, such as community groups, NGOs and social welfare organizations mirrors the attempts made in the Charter of Values to push these standards into the not-for-profit sector. This aspect of Bill 62 has been widely ignored in the public debates.