Calgary Herald - - NP - ANDREW COYNE Com­ment Na­tional Post

By now Que­bec’s Bill 62 has been fairly com­pre­hen­sively dis­cred­ited, in all its nas­ti­ness, its con­tra­dic­tions and its dis­hon­esties. A law passed in the name of the sec­u­lar state would leave in­tact such overtly re­li­gious sym­bols of the state as the cross on Que­bec’s flag, or the cru­ci­fix on the wall of the Na­tional As­sem­bly. In the name of re­li­gious neu­tral­ity, it bans the wear­ing of some re­li­gious sym­bols — those that ob­scure the face, like the niqab or burka some Mus­lim women wear — while ig­nor­ing oth­ers.

At the same time, to avoid ac­cu­sa­tions of re­li­gious dis­crim­i­na­tion, it ex­tends to other face-cov­er­ings, e.g. sun­glasses, that have noth­ing to do with re­li­gion — though it is ex­plic­itly called an “act to foster ad­her­ence to state re­li­gious neu­tral­ity.” Yet for all its em­pha­sis on the state, it ap­plies not only to providers of pub­lic ser­vices, but also re­cip­i­ents, which is to say not the state or its em­ploy­ees but or­di­nary cit­i­zens.

Far from de­fend­ing re­li­gious free­dom, then, it would rad­i­cally re­strict it. Far from pro­tect­ing women from op­pres­sion by their own re­li­gion, as its apol­o­gists ar­gue, it not only lim­its what they may wear in pub­lic, but in so do­ing ar­guably makes them more vul­ner­a­ble than ever. Per­haps some women who wear the niqab or the burka do so in­vol­un­tar­ily, but if so it is hard to see how deny­ing them ac­cess to such life-ex­pand­ing op­tions as go­ing to school or even tak­ing the bus will help.

The right to go to school or to take the bus: in the his­tory of civil rights in North Amer­ica, th­ese have a cer­tain res­o­nance. For all the be­lated at­tempts by the province’s Lib­eral gov­ern­ment to clar­ify — women would, it now says, only be re­quired to show their faces when get­ting on the bus, not for the du­ra­tion of the trip, while those wish­ing to at­tend class could ap­ply for spe­cial ac­com­mo­da­tion, on a case-by-base ba­sis — the stark re­al­ity is a bill that, at best, need­lessly sin­gles out mem­bers of a re­li­gious mi­nor­ity for petty ha­rass­ment and hu­mil­i­a­tion. Mem­bers of the same mi­nor­ity, you will re­call, were just months ago vic­tims of a mass mur­der in a Que­bec City mosque.

The bill has met with its share of op­po­si­tion in Que­bec, though for dif­fer­ent rea­sons: while civil lib­er­tar­i­ans, civic lead­ers and univer­sity ad­min­is­tra­tions have de­nounced its ex­cesses, the province’s two main op­po­si­tion par­ties, the Coali­tion Avenir Que­bec and Parti Québé­cois protest only that it does not go nearly far enough. It seems un­likely, then, that the rem­edy for this in­jus­tice will be found in Que­bec.

The ques­tion is what other means might be found. Are we con­tent, those of us liv­ing out­side Que­bec, that our fel­low cit­i­zens should be treated in such a de­mean­ing fash­ion, on the grounds that what hap­pens in Que­bec is none of our busi­ness? Or does liv­ing in the same coun­try im­ply cer­tain com­mon un­der­stand­ings, how­ever few, among them ba­sic guar­an­tees of equal rights?

To be sure, the law will quite cer­tainly be chal­lenged in court, un­der both the Cana­dian Char­ter of Rights and Free­doms and its Que­bec ana­logue, and will in all like­li­hood end up be­fore the Supreme Court of Canada. It is dif­fi­cult to see how it could with­stand such scru­tiny; what­ever wa­tery pur­pose might be con­jured up as a ra­tio­nale, it would be a chal­lenge to show how the law was likely to achieve it, still less that it did so in the least harm­ful way pos­si­ble.

Should it be left at that? Wait for some mem­ber of the pub­lic to ob­ject at her mis­treat­ment, then wait years more while the case grinds through ap­peal af­ter ap­peal? Or does the fed­eral gov­ern­ment have an obli­ga­tion to in­ter­vene in some way? In the early years af­ter Con­fed­er­a­tion, that was ex­actly how the fed­eral gov­ern­ment’s role was con­ceived: to pro­tect mi­nori­ties from lo­cal ma­jori­ties, if nec­es­sary by set­ting aside pro­vin­cial leg­is­la­tion, un­der a power known as dis­al­lowance.

It’s been a long time since any fed­eral gov­ern­ment has ex­er­cised that power, of course: the Char­ter and the Supreme Court might seem to make it un­nec­es­sary. Yet it was not only by the rul­ings of the U.S. Supreme Court that mi­nor­ity rights were up­held in the south­ern states: the of­fices of the fed­eral gov­ern­ment also proved nec­es­sary.

The feds would not have stand­ing to chal­lenge the law di­rectly in court, but they could join a case brought by a pri­vate cit­i­zen as in­ter­ven­ers. More ag­gres­sively, they could re­fer the law di­rectly to the Supreme Court for an opinion on its con­sti­tu­tion­al­ity, as they did in the mat­ter of a pre­vi­ous Que­bec law claim­ing the right to se­cede uni­lat­er­ally.

I un­der­stand the ar­gu­ments against this: that it would in­flame fed­er­al­provin­cial ten­sions, per­haps even re­vive sep­a­ratist sen­ti­ment. But we should un­der­stand what it means when we in­voke such fears as rea­sons for inaction, as we have in the past. We are say­ing that the rights of the mi­nor­ity can be sac­ri­ficed in the name of “so­cial peace,” or “na­tional unity,” or what­ever other eu­phemism we might de­vise for “we haven’t got the stom­ach for it.”

And how­ever much we might pre­fer the courts to do the heavy lift­ing for us, we might not have that lux­ury. Al­ready the op­po­si­tion is push­ing the Couil­lard gov­ern­ment to in­voke the notwith­stand­ing clause in the event the law is ruled un­con­sti­tu­tional; the gov­ern­ment, for its part, has not ruled it out. And what would we do then?


Que­bec’s ban on face cov­er­ings like th­ese niqab veils, which was passed with the in­tent of de­fend­ing “re­li­gious neu­tral­ity,” would in­stead re­strict re­li­gious free­dom, and drive those who wear them fur­ther from pub­lic life.


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