Backgrounder: Bill 62

January 20, 2018
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Background of Bill-62: An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (modified title) (“Bill-62”). (1)

1. OVERVIEW

Bill-62 comes at a time when Islamophobia in Quebec and in Canada is on the rise. According to Statistics Canada, since 2014, there has been a 253% rise in police reported hate crimes targeting Muslim communities.(2)  A Forum Research poll conducted late last year, found that 48% of respondents from Quebec had a negative view of Islam, compared to 28% in the rest of the country.(3)  Bill-62 comes just months after a gunman attacked a Quebec City mosque and murdered six people simply because they were Muslim. (4) With the adoption of Bill-62, Quebec has become the first country in North America to effectively ban face coverings in public places.(5)

Bill 62 is not the first attempt by the government in Quebec to legislatively restrict religious attire. In 2013 the Parti Quebecois introduced a controversial piece legislation known as the Quebec Charter of Values. The law sought to prevent any individual from having any overt display of religious symbols while providing or receiving public services. It was widely seen as disproportionately impacting those religious individuals who outwardly display their faith by wearing a (Sikh) turban, (Jewish) kippa, (Christian) crucifix or (Muslim) hijab. The legislation ultimately failed when the Parti Quebecois lost its bid for re-election.

In 2015, Zunera Ishaq challenged a controversial policy implemented by the federal government that prevented women from wearing a niqab, a face covering worn by Muslim women, while taking the citizenship oath. Ishaq was ultimately successful when the Federal Court of Appeal overturned the rule requiring women to remove their niqab. However, polling in Quebec suggested that 87% of the population supported the ban on niqabs at citizenship ceremonies.(6)

While the Liberal Party of Quebec rejected the Quebec Charter of Values in 2013, after winning the election, the Liberal government tabled Bill-62. While it had claimed that the Quebec Charter of Values went too far in enforcing secularism in Quebec, Bill-62 was presented as a sensible, tolerant way of enforcing state neutrality on Quebec society. A recent Ipsos poll shows that 76% of Quebecers support the Bil-62.(7)  However, critics have stated that it disproportionately targets Muslim women in general, and has an acute impact on some 90 women who wear a niqab in Quebec.(8)  It also has the effect of nurturing conditions that marginalize, vilify, and further stigmatize the wider Muslim community.
2. THE LAW

Section 10 of Bill 62 provides:

Personnel members of a body must exercise their functions with their face uncovered. Similarly, persons who request a service from a personnel member of a body referred to in this chapter must have their face uncovered when the service is provided.(9)

In other words, Muslim women wearing a face cover will be prevented from giving or receiving public services. Public services can include essential services that people rely on everyday. This will include:
● Day-care services
● Public transportation
● Applying for a driver’s license or visiting a local library
● Visiting a hospital
● In addition, she would not be able to work in some government jobs that provide services.

As the law currently stands, it is quite unclear how many activities will be included and in what contexts the law will be applied.

One important consideration that Quebec residents should take note of is that a person cannot be arrested, fined or sanctioned for not complying with the law, since no punitive measures were set out within Bill-62.

While the law would apply to everyone in Quebec, including citizens, residents and visitors, the bill incorporates a controversial exemption clause. Under section 11 of Bill 62, an application for an exemption must meet the following four conditions:
1. the request is serious;
2. the accommodation requested is consistent with the right to equality of women and men and the right of every person to be treated without discrimination;
3. the accommodation requested is consistent with the principle of State religious neutrality; and;
4. the accommodation is reasonable in that it does not impose undue hardship with regard to, among other considerations, the rights of others, public health and safety, the proper operation of the body, and the costs involved.

In addition, the applicant would need to cooperate in seeking a solution that meets the “criterion of reasonableness.” (10) It remains ambiguous exactly how the Minister of Justice in Quebec would interpret or apply the exemption criteria to any applicant.

3. STATED PURPOSE AND RATIONALE

The Quebec government justified the need for Bill-62 as a measure to protect religious neutrality in public life. It is motivated by a communitarian ethos and has been presented to the public as essential to achieving what Quebec politicians call “vivre ensemble” — living together. Beyond this vague aspiration, the implications of Bill-62, along with measures to carry out the proposed law, have not been discussed thoroughly. It appears that the effect of the law will be to exclude from receipt of public services the niqab-wearing segment of Quebec’s Muslim population. It is difficult to see how effectively banning certain women from certain public spaces will promote a culture of living together.

Philippe Couillard, the Premier of Quebec, has defended the bill, saying it is necessary for “communication, identification and safety” reasons. (11) While many members of the public can agree that safety and identification reasons are valid concerns in certain circumstances, such as entering a courthouse, the vast majority of women who wear a face covering are prepared to, and already do, remove their face covering for identification purposes. (12) Bill 62 appears to be a solution without a problem.

4. LEGAL STATUS

Bill-62 was passed into law on October 18, 2017, which means it is currently enforceable. However, how the law will be enforced and who will be doing the enforcing are important questions that have remained unanswered. Will a Muslim woman with a face covering who provides a service or receives a service over the phone be required to remove her face covering? Will bus drivers be asked to tell women to remove their face-coverings? Again, these questions remain unanswerable. This ambiguity has sown confusion amongst Muslims communities and public servants who are unsure if they are responsible for enforcing the provisions.

The law may develop as judges apply it to specific cases that come before them. A case-by-case analysis will be required to develop the legal status of the law. It is unlikely that the law would withstand a constitutional challenge under section 2(a) freedom of conscience and religion.(13) Currently, the Canadian Civil Liberties Association (“CCLA”) and the National \ Council of Canadian Muslims (“NCCM”), two leading civil liberties and advocacy organizations, have launched a legal challenge against the constitutional validity of Bill 62.(14)

In the Supreme Court of Canada judgment of R. v. N.S., [2012] 3 SCR 726, the majority of the Court ruled that a woman in niqab had a presumptive Charter right to wear a niqab while testifying. This right had to be balanced in that case against a competing Charter right, namely the right to a fair trial of a criminal accused. The stakes in a criminal trial involving a historical sexual complaint are such that the accused’s right was given considerable weight. In the absence of a competing Charter right, there is no legal basis to restrict a woman’s right to dress in accordance with her beliefs while receiving a public service.

 ENDNOTES:

1. This backgrounder is for informational purposes only.  It was prepared for the CMLA by Professor Faisal Babha to share with the community in order to improve awareness and advance discussions of the issues raised by this controversial law.  We thank Prof. Babha for his generosity and assistance. This document is not legal advice or direction of any kind. It does not necessarily represent the views of all CMLA members.
2. https://www.thenational.ae/world/the-americas/hate-crimes-against-muslims-in-canada-on-the-rise-1.66255
3. http://poll.forumresearch.com/post/2646/muslims-the-target-of-most-racial-bias/
4. https://www.theglobeandmail.com/news/national/quebec-city-mosque-shooting-what-we-know-so-far/article33826078/
5. http://www.cbc.ca/news/canada/montreal/quebec-face-covering-bill-62-1.4364055
6. http://poll.forumresearch.com/post/244/two-thirds-oppose-niqab-in-citizenship-ceremonies
7. https://globalnews.ca/video/3830237/exclusive-ipsos-poll-reveals-support-for-bill-62-highest-in-quebec
8. https://mediadiversified.org/2017/10/25/quebecs-bill-62-muslim-womens-bodies-as-the-battleground-for-populist-politics/
9. Section 10 of Bill-62.
10. Section 11 of Bill 62.
11. http://www.cbc.ca/news/canada/montreal/quebec-face-covering-bill-62-1.4364055
12. http://nationalpost.com/news/canada/canadian-survey-of-women-who-wear-the-niqab-reveals-choice-may-be-a-bit-of-a-youth-movement
13. https://www.thelawyersdaily.ca/articles/5027/bill-62-neither-rationally-connected-to-its-objective-nor-proportionate-to-negative-effects-leenat-jilani
14. https://www.nccm.ca/nccm-and-ccla-launch-legal-challenge-against-quebecs-bill-62/