Can QC Bill 94 Withstand Any Charter Challenge?

This is a follow-up to my previous post and the discussion that ensued on Quebec Government Bill Upholds Gender Equality and Secularism.

The issue of religious symbols in the public sphere has given rise to extensive debate around the world on the scope of freedom of religion. This question touches on the presence of Islamic headscarves (burqa/niqab), Sikh kirpans and turbans, among other symbols, in schools, government offices, courtrooms and workplaces. Legal and public policy acceptance or accommodation of these religious symbols depends on a variety of factors, but is most often rooted in a constitutional proportionality test that balances the right to freedom of religion against the possible threat to safety, security and public order.

Many legal scholars and policy makers offer a view similar to Laura Barnett in Freedom of Religion and Religious Symbols in the Public Sphere:

The Canadian approach to religion has been to promote multiculturalism by celebrating the expression of various religions while recognizing the supremacy of none—the government plays a role of neutral accommodation.

While Canada perceives it’s role as one of accommodating all forms of religious expression in a neutral manner, more recently, one of its provinces, Québec, has decided to apply a more restrictive and formally secular approach. At a general level, this means the official separation of church and state.

However, this proposed policy of secularity (bill 94) clashes with the religious traditions of many recent immigrants to Canada.

To summarize, Bill 94 would require anyone providing or receiving government services to do so with their face uncovered for reasons of identification, security and communication. This includes services from hospitals, schools, universities, and daycare centres that receive provincial funding.

According to the Québec government, the bill,

Makes any compromise to respect the Charter of Rights and Freedoms, including the implementation of equality between women and men and the principle of religious neutrality of the State.

In addition, the bill attempts to provide a clearer definition of reasonable accommodation. It says that an accommodation is considered reasonable if it does not cause undue hardship to public organizations or does not interfere with an organization’s operation and the rights of others.

What does this mean in plain terms? If bill 94 passes, wearing the niqab or the burqa would be banned for those working for the government or being served by it. No religious belief will prevent a government employee or other appropriate person from requiring a Muslim woman to remove her veil for legitimate identification and security when she accesses any of the services mentioned above.

Furthermore, the government argues that, allowing a government employee to wear a niqab or burqa would violate the Charter, because the veil is a symbol of inequality—of female submission to men. The principle being that the state cannot endorse differential treatment of the sexes on the basis of religious or cultural beliefs.

Remember, no Charter right is absolute. All Charter rights are

subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

What we must understand is that the Québec government will not fail to invoke any of the above three reasons to ban the wearing of the veil—identification, security or communication—or any other religious symbol that might interfere with them. The implication is that it’s not the religious symbols themselves that are in question here, but rather an obligation to uncover one’s face for these reasons. Based on legal advice obtained by the government prior to tabling the bill, it does not mention or refer to any particular religion to avoid any infringement on freedom of religion.

Clause 4 of bill 94 indicates that any arrangement must respect the Charter of Rights, including

the right to gender equality and the principle of religious neutrality of the State whereby the State shows neither favour nor disfavour towards any particular religion or belief.

This would mean that all current reasonable accommodations of religious persons—for example, that Hassidic Jews or Muslims be served only by persons of the same sex—will cease. According to the government, these accommodations contravene the right to equality between the sexes.

The bill could be justified if those who interpret it make sure there really is a legitimate reason for each refusal of accommodation.

Identification is the norm in a modern society; it is necessary to obtain a driver’s license, passport, marriage license or birth certificate, medical insurance card, to board a plane, etc. A security problem may ensue when officials are unable to identify a person.

As for communication, as stated by communication experts, this involves speech, dress, gestures and facial expressions. Regarding gestures and facial expressions, they are often revealing, and sometimes betray us. Orientation of the eye, hand movements, body sway; these are all benign attitudes that reflect mood, frame of mind, and can say a lot about a person.

Verbal and non-verbal communication are necessary to provide services to a person and to understand if the needs of the person are being met or accommodated.

Man and woman are social creatures; that is to say we live in an environment where verbal and visual contact is essential: indeed, the basis for understanding. Therefore, it is very difficult to communicate with a person whose face is covered; a garment that makes it impossible to see a person’s face creates a barrier to any form of personal contact, and impedes social interaction.

Hence, if the focus and the application of the law are for identification, communication and security reasons, it will withstand any challenges. In short, the constitutionality of the bill depends on the application that it will be given. If its provisions are applied with good judgement, restricted to individual cases, they might be defensible and therefore valid.


  1. I generally don’t disagree with your conclusion. I don’t think it has to do with recent immigrants – there have been populations that exist for decades and even before Confederation.

    As stated in the previous comments though, the women involved have no problem temporarily removing it for identification purposes. The wording of the Bill is broad enough to include mandatory removal during the entire provision of services, which would make it overly onerous. The other problem is Charet’s justification of gender equality, which imposes a much heavier burden on the government.

    Invariably, given the level of xenophobia in Quebec right now, someone would insist on more than just identification and it would be litigated, and the poorly drafted wording would have to be addressed.

  2. I agree with Omar.

    I can’t think of a single other Charter case where “gender equality” was used to uphold a law that restricted women from a particular course of conduct. While undoubtedly some women are forced to wear the niqab the connection between the ban and gender equality is tenuous at best. There is no pressing and substantial objective here that is going to outweigh the religious freedom argument under the Oakes test.

    I am happy to see the Quebec Human Rights Tribunal say that the government is under no obligation to provide a female employee to identify a niqabi woman. We have no obligation to accomodate gender segregationist viewpoints. We already have too much of that already in society and it should be rolled back.

  3. Canada does not have separation of church and state. We have freedom of religion, which includes freedom from religion if we choose not to have religion. This freedom prevents the state from promoting religion much (but religion is a recognized head of charity which provides tax credits for donations; religious officials have the right to perform civilly binding marriages in much of the country; etc – so not quite neutral…) and certainly from standing in the way of religious observation.

    However, as indicated by others, the Charter involves a balance of rights when they conflict. Public safety may be a countervailing interest – for example, when boarding an aircraft, especially given the general level of paranoia in that activity these days.

    It will be a giant step, however, to insist on a balance between religious freedom and gender equality when no rule of law is involved on the gender equality front. No law requires women to wear or not to wear the veil. No law requires women to show their faces more than men. So the gender equality value that is being set off against religious freedom in the Quebec legislation is a question of taste, or a question of presumed harassment of those who wear the veil. Can the state rely on an argument based on people’s ‘false consciousness’ – these women think they are choosing to wear a veil but it is not a true choice, it is the result of oppression – to infringe on the freedom of religion?

    Can you think of any parallel successful argument in Charter history, or other history of rights law in Canada?

    The arguments based on need to identify are subject to much exaggeration. For most interactions with public officials, one does not need to prove one’s identity at all, and for many others one does not need to present photo identification. For anything that I would not need to present a photo ID to get, a veiled woman (or man, for that matter) should be able to get without unveiling. I do not see that line being taken in examples from Quebec about what veiled women will be able to get from public servants, i.e. from people whose salaries are paid in part by the women with the veils.

    It seems likely to me that there will be lots of situations where the law will be applied in a way that will not sustain a constitutional challenge.

  4. Regardless of how the purpose of the law is characterized, if it violates the Charter in its effects then it can be struck down. The law would certainly have an effect on Muslim womens’ freedom of religion. If it also has an adverse effect on Hassidic Jews or other groups, then frankly that’s even worse.

  5. The fact is that finding a breach of s. 2 is a pretty easy hurdle for someone launching a Charter challenge. The challenge will hang on Oakes. “Gender equality” would probably and “secularism” may survive “pressing and substantial objective” but no way they get past “rational connection”, “minimal impairment”, or however they’re phrasing that third branch these days (its amazing how much you forget when you’re out of law school for just two years).

  6. Sorry was sick all weekend… just read the discussion… want to add to the comments on gender equality…

    Just a reminder that Quebec recently amended their charter of rights that forces judges to consider the equality of the sexes in legal disputes. This means if any litigious situation arises, the judge has to take into account that there is an absolute principle in the charter that stands for the equality of men and women…it could create an hierarchy of rights over for example, religious freedom.

    Not been tested yet…but it may… in any challenge to bill 94.

  7. Thanks for that update, Yosie – but where will they find inequality without finding that a woman who chooses to wear a veil did not have free choice? No law requires the veil. Religion is a choice – people can leave or change or not adopt a religion, and the SCC says that a religion is anything that one believes sincerely.

    Deciding that the state can deny services on the basis of a religious belief because the state does not agree with it (on whatever ground including alleged gender inequality) is not likely to pass constitutional muster even in Quebec.

    Repressing religious practice because it is physically harmful (like female genital mutilation)is easy to defend. Some people think that the ban on polygamy will be harder to defend, though I am inclined to think the ban will survive. If there was a demonstrable security aspect to all incidents of refusal to serve a veiled woman, the refusal might be acceptable, though ‘reasonable accommodation’ is still the law. But to deny health care, or a library card … not on, in my view.

  8. Can't Believe This

    I agree with the general tilt of all the comments saying that the Bill would likely fail a Charter challenge.

    Not only should it fail on its own given the Oakes test, but how we balance a backwards conception of ‘gender equality’ (policing women’s bodies) against the right to access public education?

    I mean, I know as legal minds we’re trained to think in a way that doesn’t always bank on the obvious, but really, given the intense racism in Quebec, the Bill should be considered suspect on that ground alone, no matter how much drafting gets ‘corrected’.