Is the Debate on a Secular State Useless and Fruitless?

Here we go again. Quebec Justice Minister recently tabled 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 fostering respect for religious neutrality of the state and aimed in particular to frame requests for religious accommodations in certain organizations. This is this sitting government’s attempt to draft a charter of secularism.

This is the fourth time that the Quebec government (under different leadership) has tried to pass a bill to clarify the religious neutrality of the state and set guidelines for the granting of reasonable accommodation in the public and broader public sector.

Justice Minister Stéphanie Vallée said the government had in hand “sound legal advice” in support of this new legislative attempt. In the media, she expressed hope that the new leader of the Official Opposition, Jean-François Lisée, remains true to what he said during the leadership race: “the candidate felt that the bill was a step forward that needed to be adopted.” With the support of the opposition party, maybe this fourth attempt will be successful!

Summary of Bill 62

The Bill provides that employees of public bodies must demonstrate religious neutrality in the exercise of their functions by being careful to neither favour nor hinder a person because of the person’s religious affiliation or non-affiliation. However, this duty does not apply to employees who, in certain public bodies, provide spiritual care and guidance services or are in charge of providing instruction of a religious nature.

It does require employees of public bodies to work with their face exposed unless they have to cover their face because of a work-related task or occupational health and safety issues. In addition, if a person wants to receive services from the public body, they must do so with their faces uncovered. That person may request reasonable accommodation that does not cause undue hardship. But the accommodation may be refused if warranted, for security or identification reasons, or because of the level of communication required. It seems an accommodation may only be granted if the person making the request has cooperated in seeking a solution that meets the principle of reasonableness.

The Minister of Justice stated that this Bill has nothing to do with religious garments, symbols or a person’s appearance. The requirements in the Bill will not prevent public employees from wearing a hijab because it does not cover the face. She added that a person wearing a chador will still be able to obtain services. However, the Bill does seem to ban the burqa and the nigab, which cover the whole body and face.

The Bill is moving away from the Bouchard-Taylor Commission that recommended eight years ago directly banning the right of public employees and those seeking service from public bodies to wear religious garments, signs and symbols. It is also moving away from stating in the law that the State is separate from the church; that the State is irreligious. In the opinion of Minister Vallée, the State has no religious or spiritual beliefs or unbelief.

The Bill also establishes the circumstances under which a religious accommodation may be granted in various areas of a public body (services, employment, and education etc.) as well as the specific elements that must be considered when dealing with certain accommodation requests. Elements to be considered when dealing with a request for accommodation include:

  • That the accommodation request results from the application of section 10 of the Charter of human rights and freedoms (chapter C-12);
  • That the accommodation requested is consistent with the right for equality between women and men; and
  • That the accommodation requested does not compromise the principle of State religious neutrality.

Furthermore, the accommodation must not impose undue hardship to the rights of others, public health and safety, the effects on the proper operation of the body, and the costs involved.

Regarding employment, when a request for an accommodation on religious grounds by an employee of a public body involves a leave of absence from work, the following factors must be considered:

  • the frequency and duration of absences;
  • the size of the administrative unit the person works in;
  • the ability of the unit to adapt, and the interchangeability of the body’s workforce;
  • the consequences of the absence on the work of the person making the request, on the work of other personnel members and on the public body;
  • the possible arrangements by the person making the request, including modifying their work schedule, accumulating or using their bank of hours or vacation days, or their undertaking to make up the hours missed; and
  • fairness with regard to the employment conditions of other personnel members, including the number of days of paid leave and work schedules.

It also introduces measure to protect Quebec’s cultural heritage (symbols, locations, buildings and so forth) when the neutrality law is applied.
And lastly, the Bill protects children in child care from being subject to religious studies and dogma. Moreover, children’s admission must not be related to their learning a specific religious belief, dogma or practice. However, there are exceptions for such things as a diet based on a religious precept or a tradition.

Opposing view points

On October 18, 2016, a parliamentary committee is underway to debate the Bill and the need for secularism in the province of Quebec. Public hearings are expected to end around November 9, 2016. Almost 42 groups and individuals will be heard during those hearings and the number is set to increase as the debate moves forward.

Many Quebec citizens feel that the debate is needed in the same vain as the one held on abortion, the death penalty and the right to assisted suicide. Lawyer Julie Latour, who is of that opinion, will appear in committee on behalf of a group of Jurists for secularism and the religious neutrality of the state. (Le Devoir, October 18, 2016)

However, Louise Arbour, former High Commissioner of the United Nations for Human Rights believes that the charter of secularism debate is “useless and sterile.” (Le Devoir, October 18, 2016) She is very critical of those who bring up the debate and thinks it is done to bolster their own election purposes.

No matter the opposing views, the Bill was tabled and must be debated and dealt with. Since the Bill was tabled last June, we did not hear much about it. Do people still care at this point and will the reactions across Canada be as powerful and negative as the first three attempts? I don’t know. We will see when several important groups like the Quebec Bar Association and Human Rights Commission submit their opinions on the Bill. However, I am sure if the Bill does pass (and there is a good chance it will now because of who is leading the opposition party), we will surely hear from the rest of Canada about it!

Comments

  1. One might ask – as many have no doubt asked as the ‘values’ debate has continued – what the motive for this legislation is. ‘What is the mischief it is intended to cure?’, as a common lawyer would frame the question.

    Have there been cases in which public servants have provided bad or no service because of the religion of the person seeking the service? Have there been cases in which the person seeking services has concluded that the services were not provided because of the religious difference between him/her and the public servant?

    Or is it just the suspicion that this might be the case? Or worse, just a general discomfort in being faced with a person who has different religious beliefs and thus different clothing?

    For general discomfort, the answer seems to me to be ‘put up with it’ or ‘learn to be more flexible’. For actual cases of discrimination – surely the current law, including employment law, provides remedies. Without a charter of secular values, I would expect to have had serious difficulties with my employer if I had ever been suspected of discriminating against anyone I dealt with as a public servant, on any recognized ground. Indeed all Ontario public servants have been required to take training on diversity and inclusiveness – in the absence of any affirmation of secular values beyond the Human Rights Code.

    I am sympathetic to the discomfort caused by the presence of a niqab (not hijab – suck it up, folks) – but that discomfort cannot be sufficient ground under current law to refuse a person services to which she is entitled, or to refuse to deal with a public servant who wears it. The fairly rare need for identification by facial recognition can be handled without new legislation.

    The reappearance of this matter suggests to me that there is some institutional desire – i.e. in the permanent public service – for such legislation, which keeps raising its doubtful head despite changes of the governing party. One sees this from time to time – the bureaucrats love the idea and no amount of public opposition or evidence of lack of need deters them.

    But maybe there is a political advantage to stirring this pot again, despite the noxious vapours it has given off in the past. Too bad. Time for some maturity, surely. Didn’t Taylor and Bouchard get it right all those years ago?