C-62

LawNewsPolitics

On Tuesday, November 7, 2017, Muslim groups and civil liberty advocates launched the constitutional challenge we all knew was coming. Last week, I and many others predicted that Bill 62 would be headed straight for the courts on grounds that it violates the freedoms guaranteed in Canada’s constitution and Quebec’s Charter of Human Rights.

I’m not going to go over the details of Bill 62 as I did that last week. Instead, let’s talk about the legal challenge.

The plaintiffs in the constitutional challenge say in their court filing that:

“Such blatant and unjustified violations of freedom of religion, as well as of the quality guarantees of the Quebec and Canadian charters, have no place in Quebec or Canada,” and that this cannot be justified in a free and democratic society.

The plaintiffs include the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and Warda Naili (formerly Marie-Michelle Lacoste), a convert to Islam who has chosen to wear the niqab as an expression of her faith.

The CBC spoke to some women who wear the niqab, something the Couillard government failed to do before passing Bill 62. For the most part they claim they have no issue showing their faces for identification and medical purposes, but that the law’s insistence that they show their faces regularly is not only humiliating them and forcing them to act in violation of their faith, but has also exacerbated the harassment they’ve experienced due to their beliefs.

The law, it seems, has sent the message to the most bigoted repulsive members of Quebec society that harassing a woman for how she dresses is perfectly ok. All you have to do is claim religious neutrality and secularism.

The motion filed in Superior Court on behalf of the aforementioned groups comes despite claims by Premier Philippe Couillard that Bill 62 was written to ensure its compliance with the Canadian and Quebec Charters. Quebec Justice Minister Stéphanie Vallée is also on the defensive, claiming the law only applies where uncovering one’s face is needed for communication, identification, or security. She’s said she believes the law will survive a constitutional challenge, though her confidence about this seems forced.

Other leaders in Quebec, including former Montreal Mayor Denis Coderre, newly elected mayor Valérie Plante, and the Quebec Association of municipalities have all come out against the law with one exception.

In a rare show of solidarity, Parti Québecois leader Jean-François Lisée has come out in support of the law, though he wanted even stricter secularist legislation. In spite of this, he too foresaw the constitutional challenge and has stated that a PQ government would use the Notwithstanding Clause to keep it in place should the courts strike it down.

The Notwithstanding Clause Lisée is so fond of is not the perfect fail safe the PQ leader makes it out to be. It is not a way for the Quebec government to flip the judiciary the legal bird should the constitutional challenge not go their way.

Section 33 aka The Notwithstanding Clause of the Canadian Charter of Rights and Freedoms says:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

Sections 7 to 15 of the Canadian Charter of Rights and Freedoms deal specifically with legal rights such as the rights of people charged with criminal conduct, as well as equality rights such as that of equal protection before the law and freedom from discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The clause allows governments to keep legislation that violates these rights in place provided they expressly declare that the law will remain in effect notwithstanding the Canadian Charter of Rights and Freedoms…

…But there is a catch.

The Notwithstanding Clause also contains a rule stating that this declaration and the law it allows can only remain in effect for five years.

The delay was created so legislators could rework the law in question to make it conform to the Charter. The five-year delay is renewable, but even laws the most stubborn politicians take pride in are reworked after being struck down by the courts.

Bill 101 is a perfect example. The Supreme Court of Canada ruled it unconstitutional, so the Quebec Government invoked the Notwithstanding Clause. During that time, the law was tweaked so it conformed to the Canadian Charter of Rights, thus eliminating the need to renew the Notwithstanding Clause and preventing future legal challenges to it.

Lisée’s mention of the Notwithstanding Clause is an indirect admission that Bill 62 is unconstitutional and would not survive a legal challenge. Once the courts strike it down and all government appeals are exhausted, it is certainly within Couillard and any other elected provincial government’s power to use and renew Section 33, but the Canadian people’s embrace of their Charter rights would make it a highly unpopular move.

With the striking down of Bill 62 a certainty, the only question left is how much more hate Quebec governments want to push on us.

LawNewsPolitics

Four years after the Parti Québecois’ colossal defeat over their quietly racist but aggressively secular Charter of Values, and less than a year after a man entered a mosque in Ste Foy, Quebec and opened fire, the government we elected to spite them is bringing up a debate no one wanted to hear. Last week, the Quebec Liberals under Premier Philippe Couillard passed Bill 62, “An Act to foster adherence to State religious neutrality” and, in particular, to provide a framework for requests for accommodations or religious grounds in certain bodies.

It should be said right off the bat that this law is clearly a political ploy. The Couillard government is up for re-election in 2018. With scandal after scandal rocking his administration, he’s clearly given up on his base and is trying to attract the most secularist racist members of Quebec society who would otherwise vote for the Parti Quebecois.

It is also clear that it is meant to discriminate against non-Christians in Quebec. The law acknowledges Quebec’s history, but the decision to leave the cross up in the National Assembly means that their version of history leaves out the Jews, Muslims, and other groups that have made the province what it is today.

With all the talk about how this law will hurt people, we need to look at what it actually says.

The law applies to all employees of government departments, members of the Quebec public service, city employees with the exception of those governed by the Cree and Naskapi, public transit authorities, school boards, universities, and vocational colleges, peace officers, doctors, midwives, dentists, and anyone else appointed by the government. The employees of childcare centers and government-subsidized daycare centers are also subject to the new rules. Anyone seeking services from these bodies is also subject to the new law.

That means that contrary to the belief that the law will only affect public transport employees and people who work in government offices, teachers at all levels as well as doctors, dentists, and midwives will be subject to this law, as well as anyone who benefits from their help i.e. students, people who ride the bus or metro, and even people in need of medical care.

The law’s mantra is one of State religious neutrality, as the words “religious neutrality” are repeated constantly throughout its text. It requires that all employees subject to this law keep their faces uncovered in the execution of their duties. It also requires that anyone seeking services from employees bound by this law have their faces uncovered in order to receive them.

As only some Muslim women are required by their faith to keep their faces covered in public, the law is clearly written to prejudice them. However, as the law is pretty unclear. People with colds or flus who generously choose to cover their faces in public in order to avoid spreading illness could also find themselves denied services. The government is scheduled to put out a regulation clarifying certain aspects of the law in the near future.

Bill 62 does have some exceptions written into it. People who provide spiritual care and guidance in universities, vocational schools, and correctional facilities are exempt. Health professionals will not be barred from refusing to provide certain medical services that conflict with their spiritual beliefs. For everyone else, there is a process by which you can apply for accommodation on religious grounds, but it is a limited and complicated one.

Applications for accommodations must be based on the right to freedom from discrimination provision in the Quebec Charter of Human Rights and Freedoms. Requests for accommodation will be handled primarily by the justice minister, who has to decide the request on the following grounds:

  • “The request is serious”
  • The accommodation requested is consistent with notions of gender equality, specifically that between women and men
  • The request is “consistent with the principle of State religious neutrality”
  • The accommodation is “reasonable and does not place undue hardship” on the state and the person seeking it has already tried to find another solution

Where the law would force someone to be absent from work, additional criteria must be taken into account:

  • The frequency and duration of the absences on religious grounds
  • The size of the body the person works for and the “interchangeability” of its workforce – in other words, if the person can easily be replaced, they will likely not be accommodated
  • The consequences of the person’s absences
  • The possibility of a modified work schedule or use of bankable hours and vacation days
  • Fairness regarding other personnel in said government body

More rules apply where the law affects school attendance. The criteria in this case include how a refusal to accommodate will affect compulsory school attendance, the schools’ basic mission to impart knowledge “in keeping with the principle of equal opportunity” and the ability of the school to provide the educational services required by law.

The arguments in favor of Bill 62 are twofold.

Couillard has publicly said that he should be able to see a person’s face when dealing with them, a remark that is not only culturally insensitive, but also rules out any exchanges done by phone or email.

The other argument is one of benevolent sexism masquerading as feminism, specifically that the law will somehow save women from oppressive religious practices. This presumes that women who wear a niqab are doing so because someone coerced them to, or they simply don’t know better. It’s an argument that infantilizes the women by making the presumption that they are not mature enough to make their own decisions about how to publicly express their faith.

This law does not save anyone. It robs them of their sense of agency. If a woman can only leave her house with her face covered and she is welcome at government funded institutions as such, she may feel comfortable going to a public library and grabbing a book on feminism. She may also be comfortable going to a sports center to take a self-defense class.

The law clearly violates the Quebec Charter of Human Rights and Freedoms rules against religious discrimination and the freedom of religion and equality rights of the Canadian Charter of Rights and Freedoms. The moment this law comes into effect there is sure to be a constitutional challenge to it.

Let’s take comfort in that.

* Featured illustration by Samantha Gold

News

On Friday morning, transit users stood at stops along the 80 du Parc South route wearing surgical masks and other face coverings to protest recently passed amendments to C-62. One Montreal bus driver honked his horn and covered his face in solidarity and now faces disciplinary actions from the STM (Société de transport de Montréal, the Montreal transit commission) as a result.

On Wednesday, the National Assembly voted for changes to the so-called “religious neutrality of the state” law which now require all those receiving provincial or municipal government services such as riding on public transit to do so with their faces uncovered. Basically, no niqabs on the bus.

The union representing Montreal transit workers say they don’t want their members to be stuck enforcing this law. They will be defending the driver at his hearing.

Meanwhile the STM says it is still “evaluating” the new rules but didn’t take that long to evaluate whether or not to try and punish the driver. He may get a reprimand or be suspended depending on factors like his work history.

The STM feels he made them look bad. If optics is what they’re concerned with, then they really aren’t looking at the full picture.

Going after a driver for showing solidarity with both a targeted minority and those transit users protesting the law targeting them looks real bad, especially when you consider that this driver will be among those tasked with enforcing that law. Bus drivers didn’t sign up to enforce the xenophobic will of the state.

Not taking a stand against C-62, something those you serve, Montrealers, don’t want, also looks real bad. The STM should have taken a cue from its union and made a statement against this unfair and bigoted legislation, at the very least from the angle that it puts them in a position that goes well beyond their mandate.

Of course, this is the same organization that censured Jacques the Singing Bus Driver of 165 fame and the guy who used to announce the stops on the 80 with a bit of location info (“St-Viateur, la rue des bagels”). While passengers seemed to enjoy a driver having a good time at work, STM killjoys shut them down.

I still don’t agree with those decisions, but at least I understand the mentality behind them. This time, though, the STM’s stance is indefensible.

If the police can wear camo pants for years because of a salary negotiation, then one bus driver has every right to honk his horn and cover his mouth for a moment to take a symbolic stand against state bigotry that may soon directly affect his job.

If more bus drivers (maybe the union as a whole) staged protests like this, which, by the way, don’t disrupt transit service one bit, it would send a powerful message. If the STM backed them, the organization would be on the right side of history.

The women who wear niqabs or burqas are the real potential victims of C-62, but it looks like the first casualty may be a Montreal bus driver showing solidarity.

NewsPolitics

This is not the time for nuance. This is the time to feel embarrassed as Quebecers and angry at our government for removing any illusion that we are one of the most progressive places in North America with just one letter and two numbers: C-62.

The National Assembly just codified bigotry and intolerance by passing amendments to Bill C-62 denying government services to people with their faces covered, in particular by a niqab or burqua. Once this goes into effect, women wearing the niqab will have to uncover when riding the bus, visiting the public library, the doctor or even their kids’ teacher.

As I said before it was passed, it’s like the Charter on steroids, even though it was passed by a government elected primarily as a protest vote against the Charter.

Quebec is the only place in North America with such regulations. That’s right, we not only beat other Canadian provinces to the punch but even the reddest of red states like Alabama and Arizona.

We did it all under the guise of supposed “religious neutrality of the state” in a room where a crucifix hangs front and center for all to see. The most ironic part being that a state imposing a dress code that targets one religion is being anything but neutral.

This denies essential services to women on the basis of what they wear. The government is telling women what to wear.

Claims that this has something to do with identification are about the dumbest defense I can think of. The only ID I need to ride public transit is my Opus Card proving I have paid. It should be the same for everyone.

Montreal Knows Best

The Quebec Government made this law, but it’s Montreal which will have to enforce it. Yes, Quebec City, Laval and other cities will be stuck with this task as well, but I’ll focus on Quebec’s official metropolis where opposition is the most fervent.

Our bus drivers, our teachers, our doctors and nurses and even our librarians will be tasked with implementing this hate-filled law. The only time a librarian should ever have to get restrictive is when someone is being too damn loud.

I can take a bit of solace in the fact that both major parties vying for control of the city are opposed to this monstrosity. Yes, Projet leader Valérie Plante had a bit of a political hiccup earlier today but swiftly clarified her position.

Here we ride on the bus and metro next to women wearing the niqab and it doesn’t phase us, it’s just a part of life. Here, women who wear the burqa send their kids to school like everyone else and have the right to meet with their kids’ teachers like anyone else.

Are there issues with public transit in this city? Absolutely. With education? Sure. With public libraries? Well, it’s called the internet and it’s causing them problems everywhere.

None of these places need a new problem tacked on, and that’s exactly what C-62 is. It’s turning an issue that really only people who have never seen someone wearing a niqab in real life or have an obsessive belief in assimilation in theory or are members of La Meute (our very own neo-Nazi group) care about into something everyone has to deal with in real life.

C-62 is a disaster that turns Quebec, known as a battleground for progress, into a backwater embarrassment that turns bigotry into law. Is it any wonder the Couillard Government also chose today to rename its council looking into systemic racism? Maybe they realized they had just taken part in that systemic racism themselves in a profound way.

Something needs to change and it starts with all of us. Post, contact anyone who voted for this, do anything you can. This may be embarassing for many (and it sure is for me) but it is also disastrous for some.