Quebec’s Bill 62 runs counter to the Charter of Rights and Freedoms and Canada’s liberal multiculturalism, which protects the sovereignty of the individual, writes Matthew McManus.

By Matthew McManus, Nov. 16, 2017

The Quebec legislature’s recent passage of Bill 62 (An Act to Foster Adherence to State Religious Neutrality) has prompted a firestorm of controversy. The law prohibits public servants and those receiving a public service from wearing any covering which obscures the face. Most controversially, the bill prohibits individuals from wearing coverings that obscure the face when attempting to ride the bus.

While not mentioned explicitly, most commentators believe that it is primarily directed against Muslim women who wear the niqab or the burka. Formally, the Bill isn’t explicitly cast in Islamophobic terms. Premier Couillard claims it is a common-sense policy supported by a “vast majority of Canadians” and essential to the proper functioning of a democratic society.  As he had put it to reporters:

“We are in a free and democratic society. You speak to me, I should see your face, and you should see mine. It's as simple as that.”

It is not hard to see echoes here of the Parti Quebecois’ earlier attempt to push forward a Charter of Values, which also would have prohibited wearing the burka and niqab, along with other religious symbols. While less draconian than the proposed Charter, I am deeply concerned about the impact of Bill 62 on Quebec society. It is therefore worth examining the justification typically given for such laws, and whether it holds water.

The formal justification of Bill 62 is the need to establish an open and efficient democratic public sphere by ensuring the faces of all individuals are visible while accessing or providing public servants. Superficially, this seems like a rather blatant solution looking for a problem.  There is little evidence that public servants and those receiving public services were substantially inhibited by not being able to see the faces of their interlocutors.

But the more substantial justification runs somewhat deeper, and pertains to Liberal government’s claim that the law is intended to secure religious “neutrality” by removing religious symbols from a public space. Here the Liberal government seems to be drawing on France’s philosophy of laicite, often called militant secularism. With a history going back to the 1905 passage of the French Law on the Separation of Churches and the State, France holds that the state should not simply abstain from promoting a particular religion. Instead it should actively seek to crack down on all religious expression in the public sphere, purportedly to create a more “democratic” environment where people interact with one another as neutral individuals.

But there are deep problems with this philosophy, both in the French case and particularly with regard to Quebec’s Bill 62. First, the policy of militant secularism is hardly neutral even on the face of it. Bill 62 prevents members of only one (unpopular) religious group from wearing religious symbols, while still allowing others to do so. While it does not directly reference Muslim women, they will be the impacted target here. While the stated purpose of the law may not be to discriminate, it is clearly the intended effect of the law, and thus runs counter to the guarantees to equality under Section 15 of the Charter of Rights and Freedoms.

But, more importantly, laws like Bill 62 could not be saved even if it extended to crack down on all forms of religious expression. This is because the majoritarian impulse underpinning the French model runs counter to the liberal multiculturalist principles underpinning Canadian law, and given legal weight in the Charter Section 2 protections of freedom of religion and expression. These protections are in place to protect against the impulse of majorities to quash forms of religious veneration and expression that they find unpalatable.  They are especially pertinent now since there is a great deal of mischief that can be accomplished under the auspices of alleged “neutrality.”

The claim that laws like Bill 62, or the French laicite for that matter, are neutral has never been especially convincing. The rhetoric surrounding them, even when not overtly phobic towards religious minorities, has always been about upholding the secular nature of Francophone culture. Francophone culture is held to be morally significant, and therefore worthy of protection, because it provides a set of symbols and referents that give meaning to the lives of Quebec’s democratic polity. Many argue that, especially as a minority in Canada’s federal system, Quebec’s democratic polity has the right to promote secular francophone culture at the expense of others.

This majoritarian impulse is deeply illiberal, and not in a way that can be justified. It’s one thing to acknowledge the value of a given culture to its adherents. It’s another to use the power of the state to crack down on other’s because they run counter to the majority culture. Compelling Muslim women to take off their religious headgear treats them primarily as members of a religious community condemned by the majority, rather than as individuals who possess rights to express themselves regardless of what the government and its supporters might want. The distinction is central to liberal multiculturalism, and is what contrasts societies like Canada to the more aggressive assimilationist states like France and the United States.

Democratic majorities are certainly entitled to enact policies which express their cultural traditions.  Quebec has certainly never been shy about doing so. But the guiding logic of liberal individualism is that there should be limits on the power of democratic majorities to impact on the lives of individuals who don’t share the cultural beliefs and practices of the democratic minority. The reasoning is that there must always be defences in place against the overreach of state power, especially when the temptation to use it is backed up by sentimental and seemingly innocent desires to promote the majority culture. This is why all laws which seek to regulate religious practices are treated as guilty until proven “reasonable” in a liberal democratic society.

Bill 62 is a discriminatory bill that targets a vulnerable religious minority. This means it runs counter to the Charter’s Section 15 guarantee of equality. And, even if the militant secularism underpinning it were extended more generally, it would still step on the rights to expression and religion guaranteed in Section 2. Most likely, it will land the Quebec government in court. And for good reason. The temptation to step on religious minorities that happen to be unpopular in the name of a democratic majority will always be there. It is one of the virtues of liberal multiculturalism to hold back these impulses and protect the sovereignty of the individual.

Matthew McManus recently completed his PhD in Socio-Legal Studies. He is shortly assuming a Visiting Professorship in Political Science at the Monterrey Institute for Technology and Higher Learning, and working on his first book on international human rights law for the University of Wales Press.  Matt can be reached at garion9@yorku.ca