Legal Research

Quebec Government Bill Upholds Gender Equality and Secularism

By Yosie Saint-Cyr

On March 24, 2010, the Quebec government tabled in legislature Bill 94, An Act to establish guidelines governing accommodation requests within the administration and certain institutions, which received first reading that same day. The Bill would create rules on how departments or agencies of the government can provide reasonable accommodation to citizens, certain organizations and public servants. These departments and agencies include health agencies, schools, colleges and universities, and services from child care to nursing homes. To this end, the Bill defines the concept of accommodation, asserts that the government will make any compromise to respect the right to equality between women and men and the principle of religious neutrality of the state, and provides that an accommodation cannot be granted if it imposes an undue hardship on the government department or agency. If enacted, the Bill would come into force on proclamation.

Premier Jean Charest and Justice Minister Kathleen Weil say the Bill upholds gender equality and secularism?the values that unite Quebecers. They said it not me, but you?ve got to love it!

Simply put,

• An accommodation must comply with Quebec?s Charter of human rights and freedoms, must meet the concerns and the right to gender equality and the principle of religious neutrality of the state whereby the state shows neither favour nor disfavour toward any particular religion or belief.
• The Bill requires that an accommodation only be granted if it is reasonable. It ceases to be reasonable when it imposes an undue hardship to the department or agency with regard to costs related to its effects on the smooth functioning of the body or rights of others.
• The Bill affirms the Quebec government?s general practice of only providing services to persons with uncovered faces, for reasons of identification, security and communication. This provision stems from Quebec’s recent human rights commission ruling that a woman wearing a niqab, or face-covering, must uncover her face to confirm her identity when applying for a Quebec medicare card. Asking a woman to uncover her face long enough for a clerk to check her identity does not infringe on freedom-of-religion guarantees in the Charter because the gesture should only take a few seconds, the commission said.

Note that the Bill would also prohibit government employees, regardless of whether they have direct contact with the general public, from having their faces covered while working, meaning they would not be allowed to don a niqab, burka or other similar clothing.

• If an accommodation involves a variation of that practice, and reasons of security, communication or identification come into play, the accommodation must be denied.

The highest administrative authority of a department, body or institution is entrusted with the responsibility of ensuring compliance with this Bill. But the Act is governed by the Minister of Justice. Also, the Act has precedence over all other Acts, regulations or orders as long as it complies with the Charter.

In reality that is the entire Bill. But a lot has been implied from it, and many think that this piece of legislation could have serious implications on religious freedom as a whole in Quebec. Some even suggest that it will affect the rest of Canada.

However, some critics who welcome the Bill, such as the Quebec Council on the Status of Women, say it has not gone far enough to truly promote secularism, because it does not prohibit public service employees from wearing religious symbols such as crosses, kirpan, head coverings and so forth.

Robert Leckey, a law professor with McGill University?s law school, said he expects the province will face lawsuits and challenges if it proceeds with the legislation. ?Clearly somebody will challenge this. There are freedom of rights issues and issues about discrimination of religion and gender,? he said.

One of the issues is that the provisions of Bill 94 are at odds with Canada?s Charter of Rights and Freedom, which enshrines a variety of individual rights, such as religious beliefs, minority protections and freedom of speech. Supreme Court rulings on Charter-related lawsuits have produced dozens of landmark rulings on language, gender, religion and privacy rights. Challenges would claim, among other things, that refusing to serve women who are following Muslim dress codes by wearing a niqab is ?discriminating? and ?disadvantaging? people on the basis of their ethnicity, culture and gender. Note that I do not mention religion because I have been made aware that wearing the niqab may have nothing to do with the religion of Islam and may not stand up under the religious defense.

Many also believe that the Bill would be at odds with the Quebec Charter since Section 10 prohibits discrimination based on ?race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap?.

This said, Quebec is not the only province feeling the need to clarify reasonable accommodation and where to draw the line on tolerance in a democratic society. Similar identity debates are happening across Canada and in countries around the world, such as France. The debate is pinpointing the deep ambivalence native-born or naturalized citizens have about social customs among immigrants (e.g., Muslims), and signal a fear that Quebec and France?s principles of citizens? rights, core values, equality and secularism are being undermined.

Despite the criticism of the proposed Bill and the debate, according to a poll conducted on behalf of the Montreal Gazette, 95 percent of Quebecers are supporters, and in the rest of Canada, three out of four people give the thumbs up to Bill 94.

Mario Canseco, vice-president of public affairs for the pollster, said the survey shows an unusually high level of support for a government measure. ?It’s very rare to get 80 percent of Canadians to agree on something,? he said.

Well what do I think of all this?

It?s the state?s prerogative to make whatever laws necessary to build the type of society the people desire and to protect those people. The question is whether the desired social norms and the security of the state should take precedence over the individual rights of the people. That?s far from a simple question though! The question of reasonable accommodation is a tiny bit simpler: is it discriminatory to deny government services to people wearing face-coverings, such as Islamic headdresses? In other words, can government departments and agencies force people to uncover their faces to identify themselves and receive services?

Several Recreation Centers in Ontario have codes of conducts requiring that no one using their services wear disguises?. This ensures that you can see the face of the person using the facilities for security and for the purpose of identification. Does this requirement that seems reasonable differ from the intent of Bill 94? I don’t think so.

Like I mentioned, there are and will be many arguments against Bill 94, but personally, I believe that it will stand up to the challenges. Quebec has consistently affirmed that it will place the good of the whole above the rights of the individual, and it will likely do so again in this case. Furthermore, the principles of gender equality, separation of church and state, and security are certainly admirable. If the law passes, however, the true test will be whether Quebec?s courts and human rights tribunals can apply it consistently, without unfairly singling out people of particular cultures, ethnicities or genders.

Full post as published by Slaw.ca on April 01, 2010 (boomark / email).