Quebec’s bill on religious neutrality is anything but

By Mihad Fahmy
Montreal Gazette | November 13, 2016

If there’s one thing that’s crystal clear from the hearings on Quebec’s proposed legislation on religious neutrality, it’s that many Quebec organizations fail to see its need, albeit for differing reasons.

For the past few weeks, Quebec has been holding public hearings into the provincial government’s Bill 62, “An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies.” The hearings concluded last week.

First introduced over a year ago, the bill attempts to codify (with some additions) existing judicial pronouncements on when religious practices may be accommodated and when such accommodation must be refused.

But it doesn’t stop there. Picking up where the Parti Québécois left off in 2013 with its Charter of Quebec Values, the Quebec Liberal government has chosen to once again set its sights on the negligible number of Muslim women who wear the niqab, or face veil, in the province.

From among the diversity of religious practices observed among Quebecers, Bill 62 zeroes in on the tiny number of Muslim women who cover their faces, pre-empting their attempt to work for the public service or access such services while covered.

Nationally, a recent Environics survey shows that only 3 per cent of Canadian Muslim women cover their faces.

The longwinded title of the proposed law makes reference to the religious neutrality of the state. That is a topic that has been discussed extensively by our courts, including the Supreme Court of Canada. Many of these cases have played out within our public schools, asking the question — what does state neutrality look like within publicly funded schools with a religiously and culturally diverse student population? For example, the recitation of the Lord’s Prayer at the start of the school day, the teaching of religious doctrine in the classroom, and the consideration of particular religious values when making school board decisions have all been struck down as violating the principle of state neutrality.

What all of these court decisions are also based on however, is the fundamental right to freedom of religion under the Charter of Rights and Freedoms. Hand in hand with the requirement that neither the state nor its institutions should favour one faith or faith community over another, is an insistence on tolerance and acceptance of religiosity. In fact, the two are necessarily intertwined, for in order to allow individuals to adopt religious beliefs of their choice and to manifest such beliefs openly, there needs to be an absence of state coercion, both direct and indirect.

So is that what Bill 62 is all about? Given that the backdrop of the bill is establishing adherence to “state religious neutrality” and given that it specifically singles out face coverings, is the government seriously concerned that women in niqab who work for the public service will religiously coerce or intimidate members of the public by their presence?

The problem with unpacking this bill is that at the end of the day, it is inconsistent with key human rights principles. Rather than facilitating inclusion, it excludes. Rather than crafting contextual and creative accommodation measures, it seeks to dictate when accommodation is to be allowed and when it is to be refused. And rather than ask how freedom of religion can be balanced with other societal interests, it sets up a hierarchy of rights.

In Quebec’s ongoing fixation with religious neutrality, what is missing is the recognition that such neutrality is not an end in and of itself, but rather a means to facilitating both freedom of religion and by extension, religious accommodation.

Mihad Fahmy is a lawyer and chair of the human rights committee at the National Council of Canadian Muslims (NCCM).