Québec’s Religious Neutrality Act – Neither Neutral Nor Accommodating

Last week, the Québec National Assembly passed the Religious Neutrality Act, also known as Bill 62. Aside from the Indian Act which I
continue to believe is Canada’s most discriminatory legislation (it is pretty hard to argue that the Indian Act’s legislative purpose was anything other than to contain and control the Indian peoples of Canada – of course, this is a conversation for a different day), I can think of no other provincial or federal legislation that is as overtly discriminatory as Bill 62.

While the Act proclaims the secular nature of the organs of state of the Québec government, its central provisions deal with, of all things, face covering. And not just for the personnel of the Québec government. For anyone receiving services from the Québec government. So to be clear, the rule is that to provide or receive services, one’s face must be covered.

This is what Bill 62 says, in part:

9. Personnel members of [government] bodies must exercise their functions with their face uncovered, unless they have to cover their face, in particular because of their working conditions or because of occupational or task-related requirements.
Similarly, persons receiving services from such personnel members must have their face uncovered.
An accommodation that involves an adaptation of either of those rules is possible but must be refused if the refusal is warranted in the context for security or identification reasons or because of the level of communication required.

10. A personnel member of a body who deals with a request for an accommodation on religious grounds must make sure that

(1) the accommodation request results from the application of section 10 of the Charter of human rights and freedoms (chapter C-12);
(2) the accommodation requested is consistent with the right for equality between women and men; and
(3) the accommodation requested does not compromise the principle of State religious neutrality.

The accommodation must be reasonable in that it must not impose undue hardship with regard to, among other considerations, the rights of others, public health and safety, the effects on the proper operation of the body, and the costs involved.

An accommodation may be granted only if the person making the request has cooperated in seeking a solution that meets the criterion of reasonableness.

11. When a request for an accommodation on religious grounds by a personnel member involves an absence from work, more specific consideration must be given to the following factors:

(1) the frequency and duration of absences on such grounds;
(2) the size of the administrative unit to which the person making the request belongs, the ability of the unit to adapt, and the interchangeability of the body’s workforce;
(3) the consequences of the absence on the work of the person making the request, on the work of other personnel members and on the organization of services;
(4) the possible arrangements by the person making the request, including modifying their work schedule, accumulating or using their bank of hours or vacation days, or their undertaking to make up the hours missed; and
(5) fairness with regard to the employment conditions of other personnel members, including the number of days of paid leave and work schedules.

To my knowledge, there is only one major world religion that may have any requirements respecting face covering and that is the Muslim faith. I am not an expert in matters of the Muslim faith or the various sects of the Muslim faith. This is what I know: some but not all Muslim sects believe that women’s faces should be covered and not exposed in public, especially to men who are not in their immediate family. In Canada, this represents a small subset of the Muslim population which, in turn, represents a small minority of all Canadians.

Today, Québec’s (backpedalling) Justice Minister said that the Act will be applied such that veil-wearing women would not be required to remove their veil when boarding a bus unless required for identification. As one can readily see, the Act does not say that at all.

As well, how a bus driver, a municipal clerk, a hospital admitting clerk, or a fisheries licencing officer is to assess whether an accommodation should be made or not is impossible to contemplate. First, none of them would be able to assess the various criteria outlined by articles 10 and 11 of Bill 62. Second, there is no guarantee that the same determination will be made by different personnel members in similar circumstances.

I should be clear that I personally do not support or encourage any religious practice that places greater burdens on girls and women or that provides greater privileges to boys and men. This opinion of mine applies equally well to religious practices that place the role of the interpretation of religious texts or the performance of religious rites solely in the hands of men and men only. So I am not a keen supporter of niqabs or veils for women and women only. But I understand that certain women believe that a tenet of their faith requires them to cover their faces. And I do not and should not doubt the sincerity or the depth of their beliefs.

Bill 62 does not say anything about people having to remove their crucifix necklaces before receiving governmental services. It does not say anything about people having to remove head covering, such as turbans or kippahs, before receiving services. It focuses on one concern and one concern only: the covering of the face. This law will have an overwhelmingly negative effect on certain female members of certain Muslim sects and on them only. It will require them to choose between being religiously observant or receiving often necessary governmental services. There can be no doubt that this was the intention behind the Act, behind the words “religious neutrality” that sound so innocent.

But we need to see this Act for what it is. This law, this Bill 62, is a knee-jerk response to a society feeling uncomfortable with people who are not acting in the same manner as the majority. It uses so-called “religious neutrality” of the State as an excuse to force others to comply with what the majority considers normal behaviour, at the expense of respecting the religious beliefs of such others. And this, even if the religious beliefs do not harm anyone.

If there is a law that should be struck down as discriminatory and contrary to both the Canadian Charter of Rights and Freedoms and to the Québec Charter of human rights and freedoms, it is Bill 62. I would love to be on the legal team that mounts that challenge.

The Québec government should do the right thing. It should repeal Bill 62, the Religious Neutrality Act¸ because it is discriminatory and it is simply wrong.

I remain

Constitutionally yours,

Arthur Grant

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