Quebec Government Bill Upholds Gender Equality and Secularism

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.


  1. Interesting post! Here are my $0.02:

    Regarding the Ontario codes against wearing a disguise at recreation centres, I have to disagree with you. They are not the same thing as a rule prohibiting the niqab. A disguise is not a religious symbol (a subject I will address further in a moment). Also, the purpose of a law matters. The niqab ban is specifically aimed at discriminating against a minority on protected grounds (religion, ethnicity, culture), allegedly for the furtherance of another protected ground (gender equality). There is no heirarchy of rights where gender equality trumps religious freedom.

    As to whether the niqab is a religious symbol is an interesting question. Whether it is mandated by Islamic faith is actually completely irrelevant to the legal answer. It does not make any difference whether or not the niqab is mentioned in the Koran at all. All that matters is if the wearer sincerely believes that wearing the niqab is connected to their faith. It is completely subjective. If a particular claimant testifies that she wears the niqab because as part of her practice of faith, that is all that is needed to make the niqab a religious symbol.

    I also can’t agree with your view that this law will survive Charter scrutiny. All of our Supreme Court jurisprudence on freedom of expression and freedom of religion weigh against the law’s constitutionality. You can see my analysis here.

    I’d be interested to hear your thoughts.

  2. I take the complete opposite position of this post as well, but for different reasons.

    There are an estimated 25 women or less in Quebec that wear the niqab. That’s twenty-five. Hardly a pressing and substantial objective.

    Additionally, all women who wear the niqab readily concede the rational need to temporarily remove it for identification and security purposes. They’ve done so over the past 1,400 years, within Islamic legal systems. There has never been a similar issue with this as far as we can tell anywhere in Canada. (The situation in R. v. N.S. [2009] was substantially different, and had more to do with cross-examination about a sexual assault in front of the accused).

    Fundamentally, the widespread support for the Bill is more properly grounded in xenophobia and misunderstandings about the niqab, especially over the autonomy of the women involved. The possibility of any of these 25 individuals being forced to wear it by others is highly unlikely, but given the small sample size this determination can be made with minimal effort.

    The most compelling piece I’ve read this past week on the phenomenon comes from the Montreal Gazette, Niqab ban harkens back to the dark days of Duplessis. If anything, this entire discourse makes the case that there is a significant shortfall in government funding for education to address Islamophobia, one of the key recommendations of the Bouchard-Taylor Commission.

    Striking down the law as unconstitutional should be a slam-dunk. If I was called to the bar I would love to be the one to do it.

  3. I agree with Omar and Lawrence in at least one respect–no way this withstands Charter scrutiny on the basis of the rationale given–nor should it.

    Every argument I’ve seen tossed out there (usually by legally uneduated persons) in support of this ban will fall on its face. It doesn’t matter one iota if the niqab is truly a requirement of Islam. What matters is if the person has a sincere belief that it is (and they will be given the benefit of the doubt). The breach of s. 2 is almost a no-brainer.

    Which takes us to s. 1…. no way will the Supreme Court find that secularism and gender equality (as important as they may be) trump the right to wear niqab. If that argument stood up a whole host of religious practices could come under the microscope.

    Secularism is an important value (one of the most important IMHO) but I don’t see the court using is unless 1) the exercise of one persons religious freedom impinges another persons charter rights or 2) the state is refusing to provide a positive accomodation but isn’t actively restricting religious observance. I think secularism could be marshalled to fend off (for instance) a demand that the state provide a female employee to identify a niqabi woman, but in the context of actively restricting a religious observance it wont fly.

    Whether gender equality would work would depend on the judge but I can’t see it in this SCC. May have flown with Wilson or L’Heureux-Dube, but this SCC will probably not agree that the cause of gender equality is served by telling women what to do. The circumstances have to be pretty profound before the courts will depart from a ‘liberal’ analysis and engage in the kind of ‘gender egalitarian analysis’ they have in other cases. I dont see those here.

    The strongest legal argument in favour of a ban on niqab’s and burqa’s would be on the basis of security (i.e. there is a legitimate state objective in preventing people from obscuring ones identity in public), but after the Gubaj Singh kirpan case I don’t see that flying. I personally disagreed with that decision but I dont make the law.

    The problem as I see it for Quebec is that they wont be able to rely on the security aspect because 1) its clear from the narrow scope of the ban (i.e. provincial employees and persons interacting with government) that the intention of the legislation had nothing to do with security and 2) even if it squeaked through the door of s. 1 of the Charter, the court very well could find that such legislation would be ultra vires provincial jurisdiction (admittedly I haven’t explored this argument too deeply).

    That said, I wouldnt put it past Quebec to pull out ole’ s. 33. I may not like the religious fundamentalism inherent in the niqab and the burqa but politically I’m reluctant to tell people what to do and legally I can’t see this law going anywhere.

    I do however disagree with Omar’s assertion that “the widespread support for the Bill is more properly grounded in xenophobia and misunderstandings about the niqab”. I think more fundamentally it is rooted in very illiberal conception of secularism (similar to what prevails in Turkey and France to name a few) and gender equality (prevalent amongst some more strident feminists). You see the same impulse in respect of Christian polygamists. Despite protestations to the contrary I find it hard to believe that 75% of the country and 95% of Quebecois are “islamophobes”.

  4. The labels aren’t entirely helpful, but yes, it’s quite obvious from this case that there are some fundamental and very basic misunderstandings and misinformation surrounding Islam. The widespread nature of support for the Bill definitively proves that this population is the most discriminated against in society today.

    As ignorance is a necessary precursor for stereotypes, which in turn is necessary for prejudice, it is a very serious problem. The fact that the Quebec government would use this issue primarily for political purposes does not bode well for the future of all minorities in Canada.

  5. So is Turkey “Islamophobic”? Because it has very similar laws.

    I agree with you that there are “some fundamental and very basic misunderstandings and misinformation surrounding Islam” but don’t see how that is “quite obvious from this case” and would ask that you elaborate on the connection. It is virtually unheard of in western society–and most others for that matter–(aside from in a few narrow holiday and weather specific contexts) to have people walking around on the streets and into various publicly accessible establishments in broad daylight with facial coverings that obscure their identity, so there isn’t really a precedent to compare the current reaction to.

    Obscuring your face makes people uncomfortable. That has nothing to do with specific animus towards Muslims. It has to do with a general suspicion of people who obscure their identity. I remember a day where I was waiting for a bus in -40 degree weather with howling wind and wearing a scarf over my face. A woman who was standing there was quite visibly frightened by that and I ended up taking of the scarf and suffering the cold.

    I suspect that if I walked down the street and into a government office right now in a balaclava I would receive more than a few concerned stares (probably more than a woman wearing a niqab). Its only because its a religious observance that anyone would even think of accomodating it.

    So far from being a case where Islamophobia is the primary driving force behind opposition to the burqa I would say it is tolerance of religious beliefs that is the only driving factor behind support for the right to wear the burqa to begin with.

    Its important to keep in mind that this is a case where some Muslim women are asking to be the exception to a largely unspoken rule (it didn’t have to be written as nobody did it) that you don’t wear a facial covering at work or when you access government services. Quite frankly if I were to insist that I be served by government or be employed by government in a non-religious based garment that obscures my identity there would be no debate or argument. It simply wouldn’t be allowed.

    Im a pretty (classically) liberal person so I am prepared to entertain arguments that niqabi woman should be allowed to wear their niqab on the basis of their religious beliefs. But Im not prepared to immediately chalk up all opposition (I’ll grant you that some undoubtedly is rooted in islamophobia) to something that is unprecedented in this society, and that would not be tolerated in any context other than a freedom of religion context as “islamophobic”.

  6. It’s a good question, but it’s also partly addressed in the previous linked post. The Turkish line of cases is inapplicable in the Canadian context, and impugns a political motivation to the garb that simply does not exist.
    A thorough reading of blog posts and public comments on news stories on the subject demonstrate that the type of sentiments underlying support for the Bill are unanimously ill-informed and xenophobic. The most common presumptions are that a) Islam itself is evil and must be destroyed, and b) these women are forced to wear it by overbearing and oppressive men. Don’t take my word for it – go read it online for yourself.
    It’s not dissimilar from the findings of the Bouchard-Taylor Commission, which said that the atmosphere in Quebec was largely created by media depictions and exaggerations of situations that simply did not exist. A similar phenomenon is observed today, except the media phenomenon is nation-wide and accelerated by Internet participation.
    One of the key issues that sticks out is the requirement of the niqab in Islam. There are some supposed experts who claim it has no basis at all. As you point out, it’s irrelevant for the purposes of constitutionality as long as it is a sincerely held belief. But these types of uninformed statements do nothing to help create an educated discourse on the subject.
    It’s true that the niqab historically was most popular among bedouin tribes, but it predates Islam and has been used by populations of other faiths (including Christianity and Judaism). It had some practical functionality, in that it protected the face from harsh desert winds and burning sun. Yes, women in the past did care about their complexion as well. Nor was it completely gendered; men have worn similar face coverings, most notably the “litham” among the Tuareg people of the Sahara.
    But as a religious practice, it’s directly linked to the definition of nakedness (“awra”). In at least one legal school of thought this includes the face, and there are minority opinions in other schools that hold the same. I’ve seen it worn in places as distant and different culturally as Morocco, Yemen, Kenya, Uzbekistan, and Indonesia. Some “experts” in Canada would have us believe it’s unique to Saudi Arabia, based on their limited experiences in that country. If a woman follows a specific legal tradition that holds this position they are more likely to wear the niqab, but other legal schools do not invalidate the right to do so. More importantly, there are practical solutions available for any potential problem, even within the parallel legal traditions we are examining.
    What I would like to see is academics versed in the subject expose media columnists and the “experts” they cite for their poor foundation in the subject-matter. Unfortunately, given the climate of hostility and level of intimidation directed to anyone who even broaches this subject, it’s extremely difficult to find participants to do so. It’s largely because of this fact, the silencing of dissent, that I find the phenomenon truly troubling. But I have no doubt that the Bill would not survive a Charter challenge if properly pleaded.

  7. “The Turkish line of cases is inapplicable in the Canadian context”

    Im not talking about the Turkish line of cases, and my reference to Turkey had nothing to do with law. It was my response to your assertions about the motivation for public opinion. You assert it is Islamophobia. I raise Turkey (a country where the overwhelming majority of the population is Muslim) to highlight that there exists an illiberal brand of secularism out there that prevails amongst some people (and governs some countries) that has nothing to do with animus towards a particular religion, but still prohibits the niqab.

    “A thorough reading of blog posts and public comments on news stories on the subject demonstrate that the type of sentiments underlying support for the Bill are unanimously ill-informed and xenophobic.”

    I read a lot of comments on blogs and news stories and regardless of the subject they are largely ignorant, ill informed and in many cases downright bizarre. I don’t think they are reflective of public opinion.

    To support my view that the public reaction is largely a reaction to the idea of facial coverings rather than an animus towards Islam is public opinion polls regarding another common feature of Islamic dress–the hijab. I can’t find a Canadian poll but here is a British poll where 66% and 70%+ of britons support banning the Niqab and burqa respectively in public places. When asked about the hijab however, those findings are reversed and 75% oppose banning the hijab in public places. I would submit that this suggests that there is something about facial coverings that people oppose rather than Islamic religious practices generally.


    I dont really care to debate whether or not niqab is a religious requirements because, as you note, it is legally irrelevant. Im not a religious scholar and as a secular atheist I dont care much for debates about theology as they are based on a premise I dont accept. As a liberal, what I care about (and its a subject that I take great interest in as you can probably tell) is navigating the murky waters around between freedom of religion, freedom from religion (i.e. the rights of people not to be governed by others’ religions), free expression, secularism, etc. If a person says that something is required by their religion I’m prepared to take their word on it. An unwillingness to dive into theology is exactly why the ‘sincere belief’ test is so crucial. My issues are whether a particular religious practice can or should be restricted, whether a particular religious practice can or should be accomodated and so on. Those kind of issues can be decided on without actually knowing the theology of a particular religion.

    I’m not going to sit here and tell you that Islamophobia plays no role in support for this particular bill because obviously it is. But I think you exagerate the extent as there are a number of other non-racist worldviews out there that would lead one to oppose niqabs and burqas. There are lots of people out there with illiberal secular and gender equality-based worldviews that object to the niqab on the basis of a political philosophy that (while you and I don’t agree with that philosophy) has nothing to do with specific animus towards Islam. There are also a whole lot of other people who just don’t agree that facial coverings should be worn in public that (once again) has nothign to do with specific animus towards Islam.

    However I agree with you that there is no way this bill withstands Charter scrutiny.

  8. KC, I’d like to discuss a point you made in your s. 1 analysis:

    Whether gender equality would work would depend on the judge but I can’t see it in this SCC. May have flown with Wilson or L’Heureux-Dube, but this SCC will probably not agree that the cause of gender equality is served by telling women what to do. The circumstances have to be pretty profound before the courts will depart from a ‘liberal’ analysis and engage in the kind of ‘gender egalitarian analysis’ they have in other cases. I dont see those here.

    Gender equality has often been put forward as a justification for the ban, including by the legislators themselves. Can a statute promote one right (gender equality) at the expense of another right (expression or religious freedom)? Off hand I can’t think of any case where this has been addressed by the Supreme Court.

    The closest the SCC has come to addressing this issue is in Reference re Same-Sex Marriage, 2004 SCC 79 at para 50:

    This leaves the issue of whether the Proposed Act will create an impermissible collision of rights. The potential for a collision of rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 (CanLII), [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (S.C.C.), [1996] 1 S.C.R. 825, at paras. 73-74. In both steps, the Court must proceed on the basis that the Charter does not create a hierarchy of rights (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (S.C.C.), [1994] 3 S.C.R. 835, at p. 877) and that the right to religious freedom enshrined in s. 2(a) of the Charter is expansive.

    Here, there is no actual conflict of rights as some seem to claim. One simply cannot infringe a right even if the purpose is to promote another one.

    Laws such as the provincial Human Rights Codes which promote civil rights are great. However, they are entirely optional. There is no positive obligation on the government to enact such civil-liberty-promoting laws. There is, however, a negative obligation that prohibits the passing of laws which infringe rights.

    There is no conflict where the legislature is put in the position of having to choose between rights. The only legal course of action is for the legislature refrain from passing laws which infringe s. 2 even if a failure to act comes at the expense of s. 15. Put another way, the legislature cannot do something which is prohibited in order to to further an optional objective.

    By the way, I agree that the notwithstanding clause might rear its ugly head on this one.

  9. Lawrence – No I think the gender equality argument isn’t very strong. While there is obviously a gender component to the niqab (you dont see men wearing them), I’m not aware of any decisions where the court has restricted a woman’s freedom in the interests of her own gender equality.

    But I think the “there is no hierarchy of rights” principle has been overstated. I am pretty sure there were some cases where gender inequality was raised as a justification for rights infringements either in the context of a s. 1 analysis or a PFJ analysis in cases involving sexual assault. I honestly cant remember the cases. I know that the state interest in equality generally was cited as a rationale for restricting freedom have also been raised in some of the free speech cases, like Taylor and Keegstra.

    But in those cases it wasnt used in a paternalistic context as it would have to be here and that is a crucial difference. The difference between those cases and here is that there it was limiting X’s freedom in the interest of Y’s equality rights. Here it is limiting X’s freedom in the interest of X’s equality rights. That is a pretty big difference. I doubt even Wilson or L’Heureux-Dube would go there. Without actually opining on whether the niqab is an instrument of male oppression I think that most of the jurisprudence supports the idea that if a woman wants to live under her husbands boot that is her prerogative. The court doesnt usually force woman to be equal.

  10. The blanket ban on face coverings for those who receive public services is surely improper, when many public services are offered to people without regard to their identity. If I do not have to show photo ID in order to get the service (which is true in many, probably most cases) then I should be able to get the service while my face is covered.

    This was what was so fraudulent about the Harper government’s opposition (disgracefully supported by the NDP)to the prospect of veiled women voting – at a time when one did not need photo ID to vote, only identification or an affidavit to the effect that one was entitled to vote. That case was all the sadder because voting is a sign of engagement with the society in which one lives. The risk for many immigrant women, including but not limited to Muslims, is that they will be isolated, deliberately or in practice, from the society to which they have come. Any move to actually participate – such as voting – should be encouraged, not rejected.

    A similar principle can apply to the woman who set off the current storm in Quebec, who was after all trying to learn the language of the majority in order to be employable and otherwise integrate into the society. She seems to have pushed her views to an extreme, and it may be that she was impossible to accommodate, but the banning of all access to all public services is a gross overreaction. Will someone be left to die on the steps of a hospital because she won’t take her veil off?

    I think KC has the edge over Omar on the question of whether this is mostly about anti-Islamic sentiments, though they play a role, clearly.

    The discussion is at the opposite end of the debate about whether public officials should be able to refuse service because of the religious views of the officials themselves (such as the SK marriage commissioners – and the British ones – who do not want to perform same-sex marriages.) In my view one has a right to follow one’s religious beliefs (short of serious violation of others, such as human sacrifice, to take an unreal-world example), but one does not have a right to a public service job. If you take the job, you do the job and you check your religion at the door to the extent of a conflict.

    France is a special case because it had centuries of bloody war, or hard struggle when less bloody, to liberate itself from the reign of the Church. So secularism being so hard won is the more precious. I still think they go too far in pushing it, but I have more sympathy for it there than here – even though religion was endemic in Quebec society until fairly recently. I guess it’s not surprising that it is in these societies where they had to fight for their secularism that there is the most sensitivity about aggressive insistence on religious rights.

    I’m pretty sure that most people in Quebec think the kirpan case was wrongly decided by the SCC, while most in the ROC think it was right.

    Solitudes? We got solitudes. The more the … merrier?

  11. Two additional comments: the government of Ontario heard from some religious leaders that ‘submission is a value worth protecting’, in the context of whether the province would leave alone or change the law that allows parties to family arbitrations to choose the applicable law. The government’s policy in that case was not to protect that value.

    Lawrence G said that “There is no positive obligation on the government to enact such civil-liberty-promoting laws.” Did not the SCC require Alberta to add sexual orientation to its list of grounds on which discrimination was prohibited? Was that not a positive obligation to enact just such a law?

  12. KC, I’ll briefly try to touch on your points:
    1) Turkey is considered one of the most oppressive states when it comes to freedom of religion, specifically because it denies that choice, i.e. freedom to choose. Other states in the region that have adopted the other extreme did so in direct response to the Young Turk movement.
    2) The Internet certainly is not representative of the general population, and I would’ve expounded on that as well, time permitting. However, the general Canadian population is not particularly informed about the complexities of any other cultures and faiths, and numerous polls have shown this population to be the most discriminated in Canada. The fact that this occurs now, and not for example in the 90s when the issue still potentially existed, does demonstrate that animus during the context of the Afghan conflict is the primary political motivation. The Bouchard-Taylor Commission (3rd time I’m mentioning it now) also established that the sentiments expressed about minorities in Quebec were clearly grounded in hatred.
    3) Agree entirely about the religious irrelevance. Only raised as an example to demonstrate the poor level of discourse on the subject, including our supposed “experts.”
    4) Having less opposition to the hijab in itself really doesn’t prove anything, other than that a practice that is more similar to the established norm is less emphatically objected to. No surprise there. Doesn’t detract from the argument that the underlying motivation, even if politically or philosophically framed, is still based on various degrees of anti-Islamic sentiments. Animus is not even a necessary prerequisite.

    Prof. Clifford Orwin in The Globe:

    Bad news comes in bunches. First there was Quebec’s Bill 94, which would refuse government services, public employment, educational opportunities and even most medical care to Muslim women wearing the niqab. Then there was the Angus Reid poll showing that 80 per cent of all Canadians agree with this measure. Evidently Abe Lincoln was right. You can fool (almost) all the people some of the time. You can fool them into unreasonable persecution of their fellow citizens…
    Canadian democracy is a large tent and a broad-minded one. There’s room in it even for a handful of veiled women. There’s none, however, for Mr. Charest’s small-minded bill. As for its supporters, I can think of but one fitting response: denying them access to government services until they come to their senses.

  13. I’m still with KC on this. If the issue for debate is a practice of Muslims, then objecting to the practice will seem to be motivated by anti-Islamic sentiment. But that depends on the practice. Alberta deprives Hutterites of driver’s licences because they won’t show their faces on them. Is that anti-Islamic? No. Anti-Christian? No. Anti-Hutterite? Maybe, but the Hutterites were able to get licences until Alberta changed their rules for reasons not related to Hutterites.

    That’s a different question from whether AB should have figured out an accommodation. I think the SCC got that case wrong, myself, but to date no one has appointed me to decide.

    I wonder if people among Canada’s first nations would agree that Muslims are the most discriminated against group. Not that such a debate shows ‘mainstream’ Canada in a very favourable light.

    In any event one does not need to win some kind of competitive prejudice contest in order to find the Quebec bill deplorable.

    I may not be following Omar properly, but to say that anti-Muslim has increased since the 1990s because of “the context of the Afghan conflict” seems a bit superficial without mentioning 9/11 and other terrorist attacks by Muslims. I doubt that most observers will count 9/11 as the context of the Afghan conflict, rather than the precipitator of our engagement in it.

    I think terrorism is exaggerated as a threat to our society, and the ‘war’ on terror as an absurd and dangerous response, and general suspicion of Muslims as an unnecessary and undesirable reponse to it, but it’s not irrelevant to the popular if wrongheaded and wronghearted feeling that leads to support of bad legislation.

  14. The context of Hutterian practices rarely make headlines outside of this case. The same point cannot be made for the entire reasonable accommodation debate in Quebec. I won’t mention a specific Commission a fourth time, but will recommend reading the report. Yes, it does exceed 1st Nations, and I focus on the Afghan conflict for a reason. No, it’s not necessary to critique the support for the Bill, aside from understanding the social context and motivations of Canadians.
    If my premise that such support is based on poor understanding and false assumptions is true, then the appropriate recourse would again be further education. Publicly funded, of course.

  15. This bill says only one thing to me: in Quebec, your freedom to appear in public however you choose is less important than someone else’s right not to be offended by how you appear in public. That is so obvious and fundamental an intrusion on individual rights, and represents such a terrible precedent for the exercise of freedoms of all kinds (starting with religious freedom but, I guarantee, not ending there) that the level of support this bill enjoys simply blows my mind.

  16. It is interesting that this very vigorous discussion has so far drawn no women (unless KC is a woman), and certainly not a single defence of the Quebec bill as an expression that sexual (or nowadays gender) equality is more important than the others. After all, there is a reason that s. 28 is in the Charter (though some people argue that s. 27 on multicultural rights can push the other way).

    I had taken Yosie’s original post to be relatively friendly to the bill, but since then…

    One of the challenges of the argument that runs ‘ban – or discourage – the niqab because it oppresses women’ is to be very sure that the woman who wears one does so against her will. And just what someone’s ‘real’ will is can be hard to know. Marxists did a lot of harm by developing arguments about ‘false consciousness’, by which they asserted that what people thought they believed was not as important as what the Marxists thought the people should believe. (That is a slightly tendentious way of putting it, but I think it’s essentially accurate.)

    So are people who support the bill on the ground that they are defending the interests of Muslim women to dress as they see fit (as long as they don’t wear a veil) presuming to read the minds of the women who choose to wear it and to understand the social/cultural/religious framework in which those minds are made up?

    I would argue that it is sometimes legitimate for lawmakers to legislate on the ground that they know better than the people subject to the legislation, but that should be rare and the lawmakers need a good deal of humility in making that judgment. (And I can conceive of a counter-argument based on democratic principles, that one must always govern with the informed consent of the governed. But that too must be qualified by the limits on democratic lawmking imposed by human rights rules like the Charter.)

  17. Omar – I have read the Bouchard-Taylor Commission report cover to cover (and most other publicly released reports on reasonable accomodation like the CFS Report on reasonable accomodation for Muslim students) and quite frankly don’t accept them as gospel. There were inferences drawn that I don’t accept and they come from a perspective that I don’t share.

    I have my own theories. Personally I think that a lot of what is seen as “Islamophobia” is actually a growing secular sentiment and a backlash against the concept of accomodation (and what constitutes “reasonable”). I have actually been told more than once that secularism is Islamophobia. Easily one of the stupidest statements I have ever heard.

    I think Canada is at a bit of crossroads. Remember that when you and I were children Canada was still a pretty white-bread place, but the secularization of society was storming forward. Provinces were eliminating catholic schools, prayers and Christmas pagents were becoming less common, and less what I would call “active” accomodation of Christians was taking place.

    Cue a huge influx of adherents to non-Christian religions (NCRs) that has continued unabated for several decades now. Unfortunately this influx occured at a time when the project of secularization was unfinished. Aspects of Christian privilege were and still are seen throughout our society and they have been more difficult for secular minded people to (i.e. Christian holidays as stats, provincial funding for Catholic schools, etc.).

    Unfortunately these remnants of Christendom have been used by adherents to and supporters of NCRs to make society look like a bunch of hypocrites. But remember that MANY people didn’t like those remnants of Christendom to begin with and were working to further secularize Canada before “reasonable accomodation” was even an issue. Calling those people “Islamophobes” because they have a general philosphy with respect to religion and the “public sphere” that they manifested before niqabs and prayer rooms and halal foods were even an issue is stupid IMHO.

    Anyway you are free to believe what you want and Im pretty sure you dont agree with my theory but while Islamophobia certainly exists (I’ve read Blazing Cat Fur and Five Feet of Fury), it is vastly overstated in terms of its extent. You mentioned internet comments, let me put this to you: how many of those comments talk about banning religious garments generally (not something I agree with)? A lot. How many of those comments talk about no government money for religion (something I do agree with)? A lot.

    Who is the most hated on group probably varies a lot from place to place in the country. In my neck of the woods First Nations and homosexuals have a far worse rap.

  18. KC,
    I don’t disagree with you at all. I just don’t see the two phenomena as mutually exclusive.
    Underlying the entire episode is what can be termed a crisis of identity in Quebec, how to maintain an identity as a minority, while still protecting minority rights within that minority.
    What I would disagree with is that this is a new phenomenon. The Gazette article linked above demonstrates the near perfect parallels with incidents when we were kids, and before.
    NCRs, as you term it, are just the scapegoat of the day, or that Zygmunt Bauman‘s contemporary “strangers par excellence” are a different target.
    I would also diverge from your perspective in that I don’t think it’s an exclusively religious/secularism phenomenon either. It’s also why I state that it doesn’t bode well for any minority group in Quebec, including racial minorities like Blacks, who may share the dominant faith. The few polls and studies we do have show that the xenophobia transcends distinct demographic criteria like faith, and extend to all notions of “otherliness.”
    Islamophobia does exist across Canada, and is a serious problem. But when it comes to Quebec, the situation is more directly attached to notions of retaining a Quebecois identity, which then translates into hostility, racism, and xenophobia, generally.

  19. I have read all your comments, respect all your points of views and appreciate the discussion. LG has asked me for my thoughts but I refrained because I did not think I could get a word in edge wise. Please note… I came to Canada in 1968 via the US via Haiti. When I became a Canadian citizen in 1974 (you had to live in Canada five years before you could at that time), I stopped being an immigrant. I consider myself a Canadian, a Quebecer living in Ontario, a woman, a francophone, and a person with a law degree and an opinion. The colour of my skin (brown), the fact that I am Roman Catholic, and the fact that I am Haitian descent does not define who I am. I am a Canadian and damn proud of it.

    Also, as so many of your comments have stated, I am not a xenophobic, a islamophobic, an ignorant, or in a direct email sent to me: a lesbian because of my photo, nor am I a non-expert on the issue of religious freedom or freedom of expression because I do not disagree with bill 94.

    This blog post and bill 94 is to me about what it means to be a citizen of this country? As Mr. R. Petlock stated in the National Post the “Discussions about freedom of religion, and freedom of choice in personal dress, just distract people from the real issue.”

    I may have gone to far in expressing that the nigab or burka can be associated with a disguise, and I apologize, that was not the intent.

    The thing is, I don’t want political correctness, or our immigration policies, or tolerant attitudes to define what I am and what it means to be a Canadian. I believe, and with all due respect, that the Quebec and Canadian Charter of Rights and Freedom have been expanded beyond what they were really meant to be.

  20. Yosie,
    I don’t think any of the comments above, at least not mine, were addressed to you personally.
    I think it was one of the few opportunities we have had to discuss the underlying issues in a civilized manner, as so many other venues online degenerate into hostile shouting-matches.
    If it caused any personal offense to you, I apologize. I still think that education over these issues would address many of the concerns behind the Bill, and that the Bill would not withstand Charter scrutiny.
    Lawrence Gridin and David Shulman have expounded on this far more fully over on Law is Cool.

  21. Yosie: See Omar’s comment above. No offence was meant at all. I was hoping to get your input on the constitutionality of the bill, in response to your statement that:

    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.

    I firmly believe that the bill will violate the Charter. Are there any legal reasons why it will withstand Charter scrutiny? That’s what I’m particularly curious about.

  22. Thank you Omar and LG for your last comments. Just to let you know… I did start writing a comment on why I think Bill 94, if it becomes law, will withstand charter scrutiny… as it turns out, it will become a new blog for further discussion. However, not this week since I need to double check some facts before I post it; but it will be posted sometime Thursday April 15 or 22. Stay tuned!

  23. Omar and Lawrence – Not sure if you saw this:

    Could be interesting.

  24. Saw it – not sure it’s the same analysis – but interesting.

  25. I appreciated this discussion.

    I think a few more points can be added to demonstrate how Bill 94 is discriminatory and based on anti-Muslim racism.

    1. It was a colonial policy of both the British and the French during their occupations of North Africa to unveil Muslim women. French schools used to pay female students to unveil to attend school. Bill 94 is squarely within this colonial tradition – enacted by an ex-colonial country on ex-colonials from a different country

    2. The nineteenth century genre of “Orientalist” paintings, which featured “Muslim” women (they were usually prostitutes paid to model) in various states of undress accustomed Europeans to the idea that “seeing” the “orientals” was their right. European travel accounts, both male and female, are full of bemoaning and rage against the Muslim woman’s face cover, which denied them the ‘right to see’ – it was experienced as an affront by the “subject races” to the “superior races”. The current widespread support of the Bill is grounded in this same reaction – the animus is entirely directed against Muslims. [the Hutterite example serves only to reinforce the notion that State power is still linked, as it was in the colonial era, to control via the gaze]

    3. Turkey’s ban on niqab (“and it’s a Muslim country”) cannot alleviate the argument that Bill 94 is discriminatory towards Muslims. The philosophy underlying the State there is Kemalism – upheld by the military. Kemal Ataturk sought to wipe Islam out of the Turkish state. Not only is niqab banned, but also the hijab.

    4. Most Muslim women in Canada choose to wear the face veil voluntarily, either out of a belief that it is required, or recommended practice. The Prophet Muhammad’s wives wore it, and emulating them is considered meritorious. Many niqabis enjoy wearing niqab and do not see themselves as “under their husband’s boot.”

    5. To deny niqabis service if they do not show their faces is to push these women out of Canada – many will choose to stay home rather than take off the veil. During the 1930s in Iran, when the Shah tried to “modernise” by forcing women to unveil (on pain of having the veil ripped off by a policeman in public), many women chose to stay home, rather than unveil. Many niqabis will react the same way – so instead of ‘forcing them to be free and equal’, Bill 94 will further isolate them.

    5. I am worried that such a discriminatory bill can have such widespread support. I believe it demonstrates a deep level of anti-Muslim racism, and the niqabis will be only the first amongst Muslims to suffer.

  26. There is no doubt some anti-Muslim animus in the Quebec bill, but I think it’s mainly a combination of a strong cultural preference to see people’s faces, along with a strong (if recently acquired) preference for secular over religious statements. People are bound to differ on how much accommodation is ‘reasonable’. I don’t like the veil, but I don’t think my preference should be given force of law, and I particularly do not want this kind of law to prevent efforts by Muslim women (or anyone else in similar circumstances) to integrate into the general society – as it appears likely to do in many cases (many of a small number of niqabis.)

    I wonder where Ms Bullock would allow us to draw the line in prohibiting or discouraging practices that are associated with or done by Muslims. How about female genital mutilation? Is it OK to ban that, or doing so anti-Muslim too?

    I am very willing to believe that there is a big difference between choosing a piece of clothing and doing surgery on someone, but since I think the objections are generally cultural, when is the majority culture entitled to prohibit the practice of a minority, and does it matter if the minority is a religious one?