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BILL 62, QUEBEC’S NEW LAW ON COVERED FACES AND STATE RELIGIOUS NEUTRALITY, FACES A COURT CHALLENGE

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On October 18, 2017, the Parliament of Quebec passed into law, “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,” commonly referred to as Bill 62.

A human rights’ group, working together with an organization for Muslim Canadians, is challenging the law, specifically with regard to section 10. This section, possibly the most controversial measure in the news so far, provides that people who request services from certain public bodies must keep their faces uncovered. The same rule applies to employees of those public bodies.

Most commentary has focused on the specific effect that the new law would have on Muslim women who wear a niqab or a burqa, garments that wholly or partially cover the face of those who wear them. While the text of the law does not specifically refer to either of those garments or to any religion, public comments from members of the National Assembly and ministers, as well as others, appear to indicate these to be a principal concern in the drafting of section 10.

Others have raised the spectre of whether the law might instead be applied to people wearing Halloween masks, or balaclavas, or ski masks or scarves during the winter. However, the central legal question is whether section 10 of the law is specifically targeted and will have an impact only on a very small group of people, and whether the effect will be to discriminate against a specific religion or set of personal convictions.

Another part of the law that may face challenges deals with neutrality in the public service, in particular, that employees of certain public bodies must, in the exercise of their jobs, demonstrate neutrality so that they neither favour nor hinder any person because of their religious affiliations or non-affiliation, or because of the public servant’s own religious convictions or beliefs.

Furthermore, it is possible that these measures may extend beyond the public sector. In particular, public bodies may, by a service contract or subsidy agreement that they make with any person or partnership, be able to extend these rules to the private sector.

Another interesting part of the law is section 16, which reads as follows: “The measures introduced in this Act must not be interpreted as affecting the emblematic and toponymic elements of Quebec’s cultural heritage, in particular its religious cultural heritage, that testify to its history.” This section may be invoked to justify the continued presence of the crucifix in the National Assembly. The argument can be and has been made that, if the National Assembly truly wishes to establish religious neutrality in the service of all Quebec citizens, the crucifix should be removed from the National Assembly, notwithstanding Quebec’s history as being a majority Catholic society.

It should be noted that the crucifix was not always present in the National Assembly. It was placed there during the Maurice Duplessis premiership, in the 1930s.

The courts will probably have a large role, not only in deciding the consequences of violations of the obligation to uncover the face and duties of religious neutrality, but also in deciding whether some sections of the law are unconstitutional in terms of violating the Canadian constitution, specifically, the Canadian Charter of Rights and Freedom.

 

Franco Tamburro, Attorney-at-Law

Alepin Gauthier Avocats Inc.

 

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