Banning ostentatious religious symbols : veiling substantive integration

Regulating the veil worn by Muslim women is a misguided effort to achieve integration and to maintain social peace. Indeed, limiting the ability to perform and obtain government services in face-covering veils only exacerbates the risk of isolation. Québec is considering such a questionable approach to accommodating religious ostentatious symbols with Bill 94[1], effectively relegating fully-veiled Muslims at the margins of public institutions. It assumes that face-covering veils acutely threaten gender equality, endanger our commitment to a secular state and pose security, communication and identification issues. Yet those postulates reveal more about Québec’s identity insecurity than about the objective threat Islamic veils pose. The integration debate is therefore deeply rooted in identity claims; both the Muslim minority and the host polity use the charting of veiling practices as a proxy for asserting a vision of the state in line with their identity. The accommodation debate has particularly salient political stakes for a small polity with nationalist aspirations like Québec. In this context, we explore how Bill 94 ascribes a fixed religious meaning to a polysemic symbol. This reductive approach is a flawed basis to reach a calibrated solution. If we are to seriously tackle legitimate concerns raised by veiling, policy alternatives based on substantial equality are more promising.

I-Context

A- Geographical scope: Québec

The debate over the veil in Québec takes place within an electrified context concerning identity. Historically, the former French colony had to contend with assimilation pressures leading to federalization under and after British rule. Québec aspires to more autonomy within the Canadian federation; political movements for independence[2] have demonstrated a strong desire to further assert both political and cultural claims to sovereignty. After the language, identity and culture of Québec was repressed under English colonial power[3]; positive measures such as the revalorisation of the French language with Bill 101[4] sought to reassert Québec’s distinct local identity. On the cultural aspect, a revival—or construction—of essentialist Québecois traits is happening.[5] In parallel, immigration is threatening the narrative of cultural specificity at the core of sovereignty claims. Concern for preserving distinct identity lead to rampant reservations about outsiders, once aired as the “ethnic vote”[6] preventing independence. To some extent, the proposed legislation to frame the display of ostentatious religious symbols is part of that endeavour to assert local identity. What’s more, migratory influx has only exacerbated the pressure to assert the uniqueness of Québec within Canada. While the official discourse surrounding the reasonable accommodation[7] debate in general—and full face veiling in particular—is couched in terms of gender equality, secularism and security, the thread of Québécois unresolved political and identitary claims runs throughout the discussion.

B- Veiling continuum

Muslim women wear various types of veils. The hijab is a simple veil worn over the head. The Al-Amira includes a tight-fitting headband under the veil, keeping hair in place. The Shayla is a longer veil reaching to the shoulders. The Khimar extends to the waist, and the Chador is a full body cloak. The Niquab also covers the mouth and nose, and the Burqua covers the entire face, with a mesh screen allowing vision.[8] Veiling attire can include gloves, or a mask completely impeding vision. Some veils are associated with a particular culture: the Chador is mostly worn my Iranian women, the Shayla is more typical in the Gulf and eastern African Muslim women privilege head wraps. This wide spectrum of head covering practices escapes neat categorisation.[9] Bill 94 is principally concerned with facial visibility in the case of Burquas and Niquabs. We refer to those as full face veiling for clarity’s sake.

C- Context of Bill 94

Multani exacerbating Federal-Provincial divide

Québec is working on legislation indirectly banning face-covering veils in governmental and administrative settings. Three contextual elements pertaining to reasonable accommodation are helpful to understanding the impetus behind the proposed legislation. In 2006, the Multani case allowed a Sikh boy to wear a symbolic knife, the Kirpan, in a public school.[10] The Supreme Court reversed the Québec Court of Appeal decision[11], stating that an absolute ban on the Kirpan was not a minimal impairment to the violation of Canadian Charter-guaranteed freedom of religion[12] per the Oakes test[13]. While the Québec Court of Appeal upheld a more robust vision of the collective importance of secularism under section 1 of the Charter, the Canadian Supreme Court gave prominence to individual freedom of religion. The different constitutional interpretations between Québec and Canadian courts gave credence to the idea that the two levels of power have different visions of multiculturalism.[14] Diverging visions of the Kirpan embodied this discord. While the Québec court construed it as an inherently violent object[15], the Canadian court adopted a relativist approach to school security. It deemed the Kirpan no more dangerous than pencils. The decision was ill-received in the province and contributed to a sentiment that federalist values overrode Québec’s. The effect was levelling accommodation practices across the country, a sharp contrast with Québec’s policy agenda to promote a distinct identity. The divergent analysis of reasonable accommodation and interpretation of religious signs is an important impetus behind Bill 94; the legislation seeks to re-assert the distinctive Québec approach to integration through stricter criteria for accommodation.

Hérouxville: the illiberal Other

In 2007, Québec experienced a further backlash against accommodation in the form of restrictive municipal bylaws voted in Hérouxville. The village voted to limit reasonable accommodation and to reaffirm the democratic, gender equality and secular values of Québec.[16] Immigrants are invited to leave their illiberal practices behind and embrace the individual freedom values Québec has fought for. Underlying these protective measures is a conception of foreign cultural practices as barbaric and pre-modern. The language is of ‘them’ versus ‘our territory’. Indeed, the message permeating the document is ‘when in Rome do as the Romans”.[17] It purports to defend Québecois rights and customs against the threat of reasonable accommodation.  The oversimplification bordering on xenophobia in the Hérouxville document triggered intensive reflection about self-identity in Québec.

Bouchard-Taylor commission: against a blanket ban

The government instigated the ‘Consultation Commission on Accommodation Practices Related to Cultural Differences’ to address the debate.[18] The commission received a mandate to formulate recommendations so that “accommodation practices conform to the values of Québec society as a pluralistic, democratic, egalitarian society”[19]. It heard public oral and written submissions from citizens, unions, and various organisations in nineteen locations across the province. The authors recognized that the controversy over Muslim veiling was a key impetus behind the constitution of the commission and notably took a clear stance against a blanket ban, calling it a ‘radical measure’.[20] And yet Bill 94 effectively relegates face-covering veiling to an exception.

D- Bill 94 Scope, definitions and structure

Scope

Bill 94 was introduced in May 2010 to regulate reasonable accommodations in public administrative settings and institutions. The legislation defines administrative settings in three non-cumulative ways: formal governmental body, public funding structure and government appointing power.[21] Relying on the existing nomenclature of official government, the ‘departments of Government’ are included in the scope of the bill.[22] Government funding also defines the applicability of Bill 94: bodies funded by the National Assembly, the consolidated revenue fund or state capital stock are covered.[23] Finally, appointment power defines the applicability the bill. When the government names personnel directly or in accordance with the Public Service Act and negotiates with employees in the framework of the collective bargaining of public and parapublic sectors, proximity suggests these bodies are administrative ones within the purview of Bill 94.[24] As for public institutions, they are explicitly named: schools, hospitals and subsidized childcare are covered by the bill.[25]

 

Definitions

1- A substantive equality approach

The proposed legislation begins with a statement on substantive equality.[26] This approach has developed in the context of employment disputes. Canadian and Québec case law goes beyond treating alike cases alike.[27] The wording of the bill contemplates an approach beyond formal equality, suggesting it is keen to anchor its reasonable accommodation policy in the lived reality of minorities who experience differential treatment in spite of a prima facie neutral norm. Yet the rest of the legislation plays out otherwise: the substantive equality prelude is merely a formal statement for legislation that entrenches the dominant norm.

Structure

1- Restrictive language before veiling is contemplated

The structure of Bill 94 imposes three limitations before accommodation for veiling is even contemplated. Section 4 subjects any accommodation to the overarching values of the Québec Charter.[28] Since it flows down to any specific legislation by design, the need to restate its overriding power within Bill 94 is functionally unnecessary. The explicit submission of accommodations to Québec Charter rights indicates, however, that should potential conflicts arise the legislature intends to give accommodations a narrow scope of interpretation. The legislator added explicit references to gender equality and secularism, hinting at particular concerns the veil elicit.[29] We reconcile these general limitations with the face-covering practice in part II. Section 5 limits the duty to accommodate to undue hardship on the State. Already present in systemic discrimination relief measures,[30] this second structural limitation further restricts the applicability of accommodation. In part III we submit that a priori full veiling does not impose pressing undue hardship issues on the state. Lastly, section 6 stipulates that uncovered faces for the provision and delivery of public services are the norm. Section 6 is crucial because it specifically limits veiling accommodation. The language entrenches the dominant norm of uncovered face as ‘general practice’. Veiling becomes an exception, a ‘favour’[31]. In sum, Charter rights are uselessly repeated, the notion of undue hardship already recognized in case law is consecrated. A general norm couches full-covering veiling as a particularism. Structurally, Bill 94 thus reads more like an effort to tighten control of face-covering accommodation than an effort to chart integration.

2- Additional explicit limitations

Once veiling accommodation is contemplated, the bill enumerates three grounds for denying it: security, communication and identification.[32] It is unclear if those restrictions are separate from the undue hardship limitation in the section above, or an instantiation of such principle. At any rate, the explicit constraint of veiling accommodation suggests the legislature wanted to give absolute weight to the three criteria above and override any balancing between the public interest in a free an democratic society and the individual’s right either in the Oakes test in Canadian Charter litigation.[33] This explicit limitation effectively politicizes the debate: the executive is giving itself discretion to cite security, communication and identification motives to nip Charter challenges in the bud. In part IV we discuss whether the preoccupations illustrated in the second paragraph of section 6 justify such close regulation of a numerically insignificant practice.

II- Secularism and gender equality versus freedom of religion: an artificial dichotomy

Section 4 of Bill 94 subordinates face-covering veiling to secularism and gender equality. Pitting veils against these two principles is misguided and incomplete. Even if we accept that veiling practices are primarily about freedom of religion, the minimal impact on secularism doesn’t warrant explicit singling out in legislation. Moreover, equating full-face veils with gender oppression is simplistic.

A- Shortcomings of reducing Islamic veil to religious sign

Polysemic sign

Affixing a religious meaning to the practice of veiling accommodation is reductive. It is a context-sensitive practice eluding a 1:1 ratio with freedom of religion. Performing a cultural or national identity may be more important than the expression of religious faith; some commentators have even interpreted veiling as a primarily political expression against modernity.[34] Surely, there is semiotic slippage between the signifier (the veil) and the signified (faith, political gesture, identity affirmation, cultural performance).[35] Another question is from whose vantage point are we evaluating the veil. Western feminists, progressive Middle Eastern leaders and fundamentalist Islamists ascribe different functions to the veil. Even Muslim scholars disagree about whether the Qur’an mandates, or even suggests, face-covering. Veiling is therefore indissociable from political discourse, especially when taking place in the context of visible minorities integrating Western societies. It is therefore incomplete at best to describe it as a religious practice.

Proxy for identity debate

Bill 94’s focus on veiling masks a wider debate over the integration of Muslim immigrants in Québec. With the expansion of immigration to visible minorities in the 1960s white, Christian, French-speaking attributes of the aspiring nation of Québécois de souche[36] began to dilute. While Christian Italians, Irish and other European immigrants had been an integral part of the Québec social fabric for over a century, the integration of newcomers from Africa, the Middle and Far East as well as from South East Asia posed a qualitatively different integration challenge. Christianity as a bridge to socio-cultural integration was lacking. They were visible and seemingly irreconcilable with some core values of Québec.[37] Indeed, the crux of the debate behind Bill 94 is Muslim integration. Similarities of this constituency with Québécois de souche seem thin. Cultural differences are particularly salient in the realm of Islamic religious practice; be it veiling, ablutions or prayers. Those are the most visible and, to some, disturbing manifestations of recent immigration. Legislation over veiling merely regulates the manifestation of a wider issue, that is how Québecois defines themselves, and what kind of concessions and transformative identitary processes the government should proceed with. While legislative activity focuses on how to accommodate practices of as of yet not integrated others, the kernel of the issue concerns the elasticity of the host society—already under siege in the English Protestant majority of the rest of Canada. In other words, Bill 94 is about securing the defining features of Québec identity. Zeroing in on face-covering veiling is a blunt tool for tackling the multi-layered issue of integration. It posits secularism and gender equality as non-negotiable terms, suggesting that the legislation is more about entrenching those attributes in Québec society than about a pragmatic integrative solutions. Moreover, the strong and functionally useless assertions of those values—gender equality and secularism—indicate an overblown preoccupation for the erosion of Québec identity. In that sense, the legislation is more telling about  Québécois de souche feeling under siege than it is a practicable way forward to accommodate the religious practices of newcomers.

Pitfalls of religious essentialism

Framing the reasonable accommodation debate in terms of religious symbols is unhelpful. Once a plaintiff has established sincere belief that her religion requires wearing the veil, the liberal analysis of freedom of religion consecrated in Amselem[38] leaves little room for judicial oversight.[39] The inquiry ends with a plaintive showing a sincere belief that her religions requires full face veiling. No objective inquiry needs to sustain the subjective faith.

As the BTC states: “(…) [t]he decision of a Muslim girl to wear the headscarf in school cannot be put on the same footing as her male classmate’s decision to wear a cap. (..) [T]he girl feels subject to an obligation and to depart from this practice would mean going against what defines her (she would be betraying herself and her feeling of integrity would be affected)”.[40] However, discussion over veiling practices should keep cultural, social and identitary layers in the picture. Keying in on the religious aspect stifles a thorough examination of the claim and enables other identitary, political and social claimsto masquerade as religious. Moreover, the cursory inquiry into the content of religious obligations by secular courts gives fundamentalists carte blanche for co-optation of the rights discourse. As the ECOSOC council recommends, secular states must beware of extremists groups instrumentalizing religious claims.[41] This dynamic illustrates the inadequacy of the individual freedom-based religious rights to deal with integration issues. Veiling is also structured by group pressures, socio-cultural identity and even more intractable factors like affluence in country of origin, educational possibilities, familial situation, etc. A focus on religious rights, individual by nature, offers at best an incomplete picture.

Bill 94 explicitly mentions secularism as an overarching value, hinting at a conception of the veil as a religious right. In other words, it pre-emptively prioritizes secularism over freedom of religion. The goal of this section was to complicate the equation of the veil with the exercise of religious freedom. The legislature is missing the point in its simplified assumption. While veiling certainly refers to religion, it eludes a simplistic equation with freedom of religion, an unhelpful concept in any event. Even if we were to accept that veiling is primarily a religious act, the following section argues that full face veiling is generally compatible with Québec’s commitment to secularism.

B- Commitment to secular state is compatible with ostentatious signs

Introducing open secularism

Simply put, secularism stands for the separation between church and state. This notion is prevalent in many jurisdictions, albeit with different emphasis on individual or collective stakes. A superficial look at Turkey and France’s compulsory unveiling versus American laissez-faire suffices to discern the wide variability in the application of secularism.

The BTC proposes an open framework within which ostentatious religious signs are workable.[42] The underlying interculturalist approach[43] entails a mutually transformative exchange between the host society and newcomers.[44] With French as the common denominator, Québec is a pluralist society where symbols of difference are allowed in order to uphold individual liberties. In this model, the equality of all citizens and their rights to freedom of religion and conscience are the ultimate objectives. State neutrality and the church/state separation are collective means to achieve individual self-realization.

Section 6 is overly broad

Open secularism is compatible with accommodating full veils. Several arguments in favour of flexible accommodations are brought out in the BTC and merit to be reproduced here.  First, allowing ostentatious religious signs doesn’t threaten the core of secularism. That core is about how decisions are taken, not the appearance of the person providing or receiving governmental services. What institutional independence demands is neutrality from any particular point of view on religion in order to foster participation in a neutral pluralist state. Focusing on symbols worn by service providers detracts from the real preoccupation; energies would be better spent ensuring that  a particular outlook on religion does not influence the substance and process of public services.[45] Furthermore, regulation of ostentatious religious symbols is to be modulated in relation to the vulnerability of the citizen at the receiving end, subjecting coercive roles to a heightened neutrality standard, as well as to the symbolic charge of the role of the public servant.  Consequently, the intensity of a secular message should adapt according to the context of the interaction. Finally the BTC is silent on the appearance of receiver of public services. Indeed, there seems to be an even more tenuous connection between secularism and the appearance of citizens at the receiving end of public services. These three caveats undermine the pertinence of legislatively requiring uncovered faces as a general norm in the issuance and delivery of administrative and institutional public services.

Face-covering is a downstream priority for secular values

Even if we accept that face veiling can, in some cases, conflict with secular orientations, it is unclear why the legislature chose to single it out in section 6. Separate swimming pools, private prayer rooms in public institutions, same-sex medical treatments and SAAQ examinations challenge state neutrality with more urgency. Yet the legislation focuses on a piece of clothing worn by a numerically irrelevant portion of citizens. Is this the most pressing order of business to achieve secularism? A more convincing hypothesis is that the government succumbed to irrational stirrings concerning the otherness of veiled women. Instead of dealing with unspoken identity insecurity, promoting secularism needs to proceed from a principled approach.

Critiques of open secularism

The vision championed by the BTC neglects the collective dimension of Québec’s identity in the integration debate. Those in favour of section 6 are at least clear about the fact that accommodation debates are instrumental to construct Québécois identity. In their view, open secularism is misguided because it proceeds from the assumption that individual rights—freedom of religion/conscience and equality—take precedence over the collective values embodied in the state/church separation and state neutrality. This hierarchy of the values underpinning secularism proceeds from the Canadian multicultural mosaic narrative emphasizing individual rights as embodied in the language of the Canadian Charter.[46] By contrast, Québec needs more robust collective protections of its self-identity because it is a minority within the Canadian nation. Proponents of this view argue that stronger protection of Québécois identity is a matter of self-respect, not narrow-mindedness.[47] Thus the primary consideration of secularism is defining Québec identity. The prominent role of individual liberties in multiculturalism makes it difficult for Québec to assert its specificity vis-à-vis other identities in Canada.[48] Whatever the correct view on the degree of robustness of secularism demanded by Québec’s minority status in Canada, that debate needs to be addressed at a general policy dimension, not on the heads of a minority constituency already faced with markers of vulnerability. Accommodating veils pinpoints the issue of collective values with acuteness, but should not be isolated from Québec underlying identity quest.

 

C- Gender equality

Bill 94 reiterates the primacy of gender equality in evaluating accommodation demands. The implicit assumption that veiling practices covering women’s face acutely threaten gender equality to the point of legislating it away is debatable on many counts. While it may be that in patriarchal societies the veil took root in gender oppression, it is unclear how much of that baggage is imported when worn in a liberal secular democracy like Québec. We examine the debate over the oppressiveness of the veil, and the suitability of creating a hierarchy of rights to ensure the primacy of gender equality over freedom of religion.

Re-examining gender oppression

1- Muslim groups supporting the ban

Some groups representing Muslim women support banning veils covering women’s face in public and administrative settings. In the context of the debate over whether women should be allowed to testify in court with a face-covering veil[49], the Muslim Canadian Congress stated that “[t]he covered female face is a reminder to the wearer that she is not free, and to the observer that she is a possession”.[50] One may question whether the statement above betrays a simplistic transposition of their experience from oppressive regimes or accurately considers the contextual mutations effected by the change of context, i.e. the Ontarian liberal democracy in which veiling now takes place. At any rate, opposition to veiling within the concerned communities suggests some foundation to the oppression argument.[51]

2- Coalition against the ban

The coalition against Bill 94[52] takes a different approach to regulating face-covering symbols. Looking at its concrete exclusion effects, it contends that denying public services and employment opportunities to veiled women furthers gender inequality[53] and denies them control over their bodies and image. Underlying this stance is the problematic assumption that women chose the veil freely. Nevertheless, the coalition correctly points out that imposing a ban does nothing to empower women; it simply shifts the origin of the mandamus from religious to civil authority.

3- Western ascription of veil as religious oppression of women

Some Québec feminists conflate recent Catholic gender oppression with the treatment of women in the Muslim faith. The CSF is emblematic of this uncritical transposition: it analyses gender oppression at the level of all monotheists religions, pointing out that they are inherently patriarchal. The sacred texts are written and interpreted by men, and women are relegated to a secondary role in religious practice and representation.[54] While evidence supports these broad traits, the generalization denies agency to religious women and constitutes an oppression in itself. As Razack points out, ascribing oppression to veiled women proceeds from an unexamined assumption that pre-modern women without the benefit of occidental secular views are unaware of their condition. This agency suppression reproduces the very domination dynamics gender equality seeks to overcome, only in a racialized format.[55] Volpp further argues that western feminists are blind to gender oppression in their own culture, be it the oversexualization of feminine appearance or the pervasiveness of domestic violence.[56] Statistically, gender equality in Québec is perhaps more an ideal than an achieved goal: women earn 68.6% less than men, they are politically under-represented with only 28.8% of seats at the National Assembly and 17% of mayor positions.[57] Hoodfar also raises the structuring role of colonialism in gendered oppression.[58] Specifically, she narrates how mandatory unveiling in Iran, an effort to embrace western values, restricted women’s independence and relegated them inside the home. Lastly, racialized women often sit at the intersection of vulnerabilities stemming both from their gender and their socio-cultural otherness.[59] Western feminists, if they are to engage in the debate over face-covering veils with efficacy, need to recognize that it is not only the other’s faith but also their culture that structures the oppression of veiled women.

4- Relativism: deference by fear?

Much to the reverse, other western commentators uncritically embrace the idea that women wearing Islamic veils chose to do so autonomously. This deference echoes the court’s refusal to delve in religious matters in Amselem. Reluctance to engage with religious and cultural signs stifles the quest for an appropriate view on whether or not, in the Québec context, gender oppression justifies section 4 of Bill 94. Moreover, hesitance to engage with the heart of the topic betrays the identitary insecurities of Québec. Fear of being perceived as racist, instead of calmly asserting concerns for all Québécoises, permeates the uncritical embrace of faith-mandated veiling as an unproblematic autonomous choice. While giving a voice to the principal subjects of Bill 94 is desirable to avoid further objectification, a textured approach ensuring informed consent can serve as an objective interpretative guide to negotiate the muddy waters between ascription of oppression and uncritical import of the view of the targeted communities.

Hierarchy of rights: an enlightened idea?

1- PQ proposal

The PQ proposes to enshrine the supremacy of gender equality over freedom of religion. The official provincial opposition party believes a change in the Québec Charter would palliate the perceived erosion of feminist gains brought about by current accommodation to religious practices.[60] The perceived threat echoes the western feminists’ view above that full-face veiling is inherently oppressive to women. Louise Beaudoin, the party’s spokesperson on gender equality, proposed an amendment by which the Québec Charter would be modified to give gender equality a special status.[61] She states that: “(…) le droit à l’égalité entre les hommes et les femmes doit primer sur le droit à la liberté de religion. (…) [C]’est vraiment un droit qui doit avoir préséance sur l’autre.”[62] The PQ finds support for a hierarchy of rights in a case where the right to a full defence trumped religious freedom.[63] The issue in Gruenke involved the admissibility of a Church confession as evidence in a murder trial. By inference, gender equality could trump religious freedom.

2- Shortcomings of a hierarchy of rights

The PQ proposal is weak on three points. First, a deeper look at Gruenke provides little support for their argument. The Supreme Court actually adopted a case-by-case test imported from American jurisprudence (the Wigmore criteria[64]); it did not endorse a principled approach minimizing freedom of religion. Moreover, one cannot simply replace ‘right to full defence’ with ‘gender equality’ as the PQ proposes.[65] The right to a full defence has been a cornerstone of the common law since the consecration of Habeas Corpus in the 17th century. While gender equality is an important value and should be championed in contemporary society, it does not carry the same socio-historical moral authority.  Furthermore, hierarchizing rights undermines the spirit of the universal declaration of rights. They should support each other towards the realization of the good life; hierarchy, by contrast, implies that they are competing with each other in an inherent conflict. While concrete situations may require the balancing of rights to tilt towards gender equality, a principled hierarchy of rights takes away the flexibility to calibrate to each situation and risks eroding the relevance of the ‘dominated’ right. Finally, the interpretation of international obligations lending support to a hierarchy of rights is simplistic. While the PQ does not directly allude to the CEDAW[66], Hong points out that other groups taking part in the debate find support for the hierarchy of rights proposal in Canada’s obligation to modify ‘all practices’ endangering gender equality.[67] For example, the Bonenfant Chair arrives at this conclusion by classifying rights as either universal or cultural. They situate veiling closer to a cultural practice than to religious freedom.[68] While we cautioned against essentializing veiling as a religious practice to the exclusion of its socio-cultural context, recasting it as cultural only to deny it the level of protection associated with a universal right is suspiciously instrumental. Consequently, there is little jurisprudential, legislative or principled support for a hierarchy of rights.

3- revealing the political stakes

The proposal to increase the weight of gender equality in the Québec Charter says more about the province’s insecurity when confronted with culturally disruptive influx than about a desire to promote the interests of women. Immigration brings about a perceived threat to recent gains for women, for which a hierarchy of rights is an ill-suited solution.  The BTC recommended taking the debate over accommodations out of the courts and into civil society.[69] The proposed amendments to Bill 94 prematurely stifle fruitful exchange in the spirit of interculturalism and reveal a misunderstanding of the effects of veiling on gender equality. The PQ’s insistence that gender equality be non-negotiable is another symptom of identitary insecurity. In order to achieve optimal balancing of rights, a more nuanced approach is in order. Only a continuance of the debate with all stakeholders will allow a social consensus to mature into a calibrated approach.

III- Undue hardship

Bill 94 consecrates three jurisprudential factors of analysis in determining whether accommodation should be refused because it imposes too great a constraint on the state. Those factors are cost, impact on proper operations of the state and impact of the rights of others.[70] We analyse how accommodating full face veils can be reconciled with each factor.

A- Cost

Underlying gender equality issue in public workforce

The cost in accommodating full veils is only problematic if state agents are disproportionately male. As we shall see in section IV, female state agents should perform the security, communication and identification procedures on fully veiled women in a constructive compromise between state exigencies and respect for their practices. For example, a woman agent receiving the testimony of a woman in court or identifying her prior to provision of public services will permit the citizen to unveil without infringing on her religious beliefs.[71] Since the number of women wearing the full veil is numerically limited, Québec should not have to seek out and hire additional women to perform those tasks. We may also point out that the real issue is the cost of gender parity: professions like judgeship are male-dominated, a weakness irrespective of reasonable accommodation. In that sense, accommodation costs, if any, merely shed light on pre-existing inequality in the public workforce. They should therefore not militate against veiling accommodations.

Positionality

A more thorny issue is positionality. By selecting women to performing certain tasks, would the state implicitly endorse the principle that only women are suited to serve women? Accommodation veiling with female agents indirectly consecrates identity-based claims. But identity is not static, it can be performed differently by every individual.[72] In other words, men are also capable of showing modesty towards women and behaving in a non-sexualizing manner. Since the underlying issue for veiling is modesty towards men[73] is Québec not categorizing its male agents as inevitable vectors of desire? To complicate things further, what about homosexual male agents? Are we losing an opportunity to promote transformative social friction when isolating veiled women from male agents of the state?  While the cost of assigning women agents is not a live issue, the symbolic ramifications of same-sex services are problematic. Even if this caveat is not dispositive of the undue hardship argument as it is not a cost issue, it nevertheless must be borne in mind.

B- Impact on proper operation

Accommodating veiled women is more prejudicial to public perception than to the actual impact on state operations. In criminal judicial proceedings, the perceived risk is that allowing an all female judge and counsel hearing might open the door to forum shopping. If they calculate that a female judge will be more opened to their cause, lawyers may manipulate the religious belief of their clients to obtain a strategic advantage. Two points put this risk in perspective. First, lawyers already forum shop via scheduling, territorial jurisdiction and other means. While it does not legitimize the instrumentalization of accommodation for improper operation of public services, this recognition shifts the focus to the generalized nature of forum shopping. Accordingly, this loophole needs to be addressed at a systemic level. There is no reason to focus on reasonable accommodations as a particularly conducive tool for distorting the operations of justice or any public service. Second, this is a matter of public perception rather than actual favourable treatment. While public confidence is important for the reputation of public institutions, the crucial point is how decisions are effectively taken.[74] The discussion on the operation of public services is not concerned with appearance of proper functioning, but with the actual implementation of services. Unless a loophole giving factual preferential treatment to veiled woman as a result of accommodation measures can be proven,  this accommodation does not strike us as particularly dangerous for the proper operation of the state. By contrast, other accommodation demands, like religious holidays, separate ablution and prayer rooms are much more likely to impose undue hardship on the State as they would compromise scheduling, human resources distribution and limited spatial assets. In sum, full face veiling does not pose particular hardship on the state in terms of operations.

C- Other’s rights

The idea of balancing accommodation with other’s rights appears redundant, irrelevant and ill-suited. Gender equality and the principle of secularism are already mentioned in section 5 of Bill 94 as overriding factors in accommodation claims. The proportionality inquiry in the Oakes test in Charter litigation is the appropriate place to balance competing rights.[75] It is a context-sensitive test apt to deal with the collective goals of a free and democratic society. By contrast, the blanket constraint on accommodation when other’s rights are triggered is a rather blunt tool. Finally, undue hardshipis about reconciling the interest of the rule-emitter with that of targeted individuals. It is an improper place to consider the interests of other stakeholders. That would be the place of policymaking. Accordingly, undue hardship on other’s rights does not add any enforceable clarity to Bill 94, particularly with regards to full face veiling.

D- No particular issue of undue hardship with veil

Full face veils are not particularly problematic in the definition of undue hardship. The cost of accommodating the few Québécoises wearing it is minimal on the public purse. Perceptions of impact on proper operations are largely unfounded. The rights of others is a vague and irrelevant factor to consider. While we cannot pre-emptively rule out any undue hardship posed by full face veiling accommodation, in light of the definition of section 5 it does not pose a particular challenge. We propose that the strain full-face veiling poses is neither financial, operational nor rights-based. Instead, it jostles with received ideas about how one should perform Québécoisidentity.

IV- Internal limits

Section 6 of Bill 94 submits full veiling accommodation to three additional constraints. It must be denied when security, communication or identification warrant it. This section details the implications of these additional hurdles.

 

A- (in)Security reconcilable with veil

Even a full veil can be reconciled with security preoccupations. This ground of denial for a veiling accommodation hints to deeper insecurities about Muslim immigration. Indeed, it hinges on uninformed assumptions: either veiled woman are inherently dangerous, or criminals use full-face veiling for unlawful acts.[76] No case or statistic indicates that veiled Muslim women are a particularly criminally-inclined demographic. In support of the second theory, one may offer the case of Mustaf Jama, a wanted criminal who fled the UK hidden under a Niquab.[77] Closer examination reveals that the issue is inadequate identification procedures rather than a self-standing security threat. Indeed, it is not wearing a Niquab per se that allowed Jama to escape the police, but inappropriate airport identification procedures. Stories of dangerous terrorists fleeting NATO forces disguised in Burquas in Afghanistan also come to mind. However, the transplantation of this danger to Québec is unfounded; not a single case of criminal activity involving religious veil camouflage has ever materialized. Little evidence therefore exists to support either claim. Could it be that the security concern is more about the queasiness elicited by the impossibility of fixing our gaze on these women? The provision aims not at securing a safe environment, but satisfying a desire of control through visibility. Foucault’s theory on visibility as a disciplinary method comes to mind[78]; the inability to see behind the veil shatters habits of categorisation. The veil shields these women from the inquisitorial gaze that has been the modus operandi of western interfacing with others. The real insecurity at play here is the inability to see, thus dominate, the other. That it not a legitimate reason to refuse accommodation.

B- Communication

Unworkable criterion

Communication is a vague unhelpful term. It is therefore irrelevant to argue whether or not wearing a full-face veil can be reconciled with this limitation. According to the Québec Bar Association: “[l]e mot communication est vague, imprécis, difficilement compréhensible quant à sa portée et est de nature à soulever de nombreux litiges inutiles. En outre, la jurisprudence en matière d’accommodements raisonnables n’a jamais retenu cette notion […].”[79] Several briefs submitted in the general consultations on Bill 94 recommend erasing this notion, as it enhances unpredictability and clarification is a waste of judicial resources.[80] Moreover, section 6 makes governmental services contingent on a citizen proving her legitimacy, as in authoritarian regimes.[81] This is particularly problematic when the criterion is as vague as ‘communication’: it is conducive for carrying illegitimate or unspoken agendas. For instance, stereotyped assumptions about Muslim women ‘sending the wrong message’ to young girls could masquerade as communication arguments and effectively prevent veiled woman to teach, or, even more dramatically, to receive public education.

Communication in judicial setting

1- Contextual approach

While communication does not refer to any particular notion, we can fill in the intention of the legislator and anticipate its relevance in the judicial setting. An Ontario case illustrates one meaning of communication in the context of full-veil accommodation.[82] The dispute arose when the plaintive in a sexual assault case refused to remove her veil during the preliminary inquiry to criminal proceedings in the name of her religious freedom. In that case, facial visual cues were construed as communication relevant to cross-examination and the credibility of the testimony.[83] The court ultimately overrode this argument in favour of a full defence with the religious freedom claim of the plaintive. The takeaway for Bill 94 is the flexible case-by-case approach promoted by the Ontario Court of Appeal. Instead of legislating ex ante that women wearing full face veils must always be denied accommodation when communication is involved, several factors will modulate the outcome. In that context, the centrality of the testimony and the possibility of constructive compromise such as in camara testimony with a female judge and counsel militated for a go until stop approach where witnesses would be allowed the veil unless a clear sense that the cross-examination was stifled emerged.

 

2- Interculturalism invites a compromise on visible communication

Interculturalism might prompt a re-evaluation of the importance of face-to-face communication in an adversarial judicial system. Confrontation between the accused and the prosecution witnesses is an important practice, but not a constitutionally protected right.[84] In that sense, communication is merely a means towards the end of a reliable verdict and can be modulated if other goals demand it. Might the commitment to interculturalism prompt us to reconsider the tenet of face-to-face confrontation in criminal proceedings? For one, allowing Niquabs in courts improves access to justice for the ‘unfairly maligned’ Muslim community.[85] Moreover, facial confrontation is a culturally charged concept whose power dynamics are not the most constructive for creating a society of mutual exchange between citizens of various ethno cultural backgrounds.

C- Identification

While identification poses a serious challenge in terms of accommodating full veiling practices, that difficult task is not insurmountable. The right to a full defence requires identification with particular intensity. Fraud prevention and accurate service provision require it in the administration of public services, albeit with lower intensity.

1- Right to a full defence

Criminal proceedings can achieve fact-checking and the right to a full defence without banning full veils. N.S. recognizes that in some cases it is essential for the defence to confirm the identity of the witness, or that facial appearance may be relevant to counter the allegations.[86] The court endorses the Crown’s constructive compromise solution to reconcile freedom of religion of the plaintive on the one hand and the right to a full defence of the defendant on the other. Concretely, processes can be adapted in terms of the gender of the judge and counsel. As is the case in airport security procedures, fully veiled women can be positively identified in a separate room by a woman without having to remain unveiled during the public procedure.

2- Workable accommodation in dispensing of public services

Identification for providing public services can be achieved without prohibiting the veil. Two objectives require the identification of the receiver of public services. First, identification of the person prevents fraud. Driving license examinations, welfare claims and other administrative services entail the performance of publically funded services. To prevent abuse and fraud, it is necessary to positively identify the client by verifying facial features. Identification is also required to ensure that the service is correctly provided. In the health care context for instance, it is important to verify the identity of the person to ensure that her personalised medical history is taken in consideration for diagnostic and treatment. Save for a medical physical examination, fully veiled women only need to unveil for a moment prior the delivery of service to verify identity. Again, constructive compromises largely reconciles the requirement of identification with respect of veiling practices. As for the facial features of the providers of public services, they do not need to be identified. Bill 94 is thus overly broad. In all cases, the debate will soon be obsolete, given the likely shift to biometrics for identification. Iris scanning and digital fingerprinting coupled with centralised databases achieve identification without resorting to facial features.

V- Towards equality-based integration policies

Addressing the roots of inequality effectively promotes women’s rights and maintains secularism. If reasonable accommodation is ultimately about integrating new immigrants consistently with Québec’s values, a fuller equality framework ensuring meaningful civic participation is a more meaningful avenue than focusing on ostentatious religious signs. Moreover, this approach promotes gender equality with more force than Bill 94. Section A defines what substantive equality might be in the context of Bill 94, and section B proposes integration policies that would better address the lived challenges of integrating Québec’s culture, values and collective identity.

 

A- Substantive equality is best framework to calibrate regulation

1- Textual basis for applying substantive equality approach

In the wording of the legislation, equality ‘dictates’ accommodation.[87] The vocabulary suggests that the goal of Bill 94 is about ensuring that each citizen benefit from equality rights guaranteed in the Québec and Canadian Charter.[88] Additionally, Bill 94 lends some support to a particular conception of equality.  Since it aspires to correct differential effects of a uniform rule, it can be construed as supporting a substantive vision of equality.[89] We now turn to a fuller explanation of what substantive equality entails.

2- Substantive equality

Substantive equality is a group-oriented, result-seeking approach that contextualizes the claimant in oppression and subordination dynamics. It has developed in reaction to the failure of Canadian Charter litigation to address structural, group-based inequality. The discrimination test developed in Andrews[90]is a positive analytical shift in Canadian equality jurisprudence because it looks at the concrete effect of the impugned law: “(…) discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group[91] (emphasis added). While this approach is a positive step away from the similarly situated formalistic analysis[92]Baines suggests it is limited to classifying the treatment of the claimant in relation to a compatur group, abstracting her from the complex socio-political context and group dynamics in which the alleged inequality takes place. A related shortcoming is that it still takes the statute as the basis for the claim and relegates lived circumstances to the background. Substantive equality, by contrast, begins with the real-life systemic inequality as lived by the claimant.[93] Just as Justice L’Heureux Dubé’s dissent in Symes[94] addressed the particular work-family conciliation issues businesswomen face when she assessed the constitutionality of tax laws preventing childcare deductions, the marginal position of veiled Muslim women in Québec is the starting point for ensuring accommodation laws live up to equality promises. The singling out of face covering veiling in Bill 94 proceeds from and reinforces oppressive stereotypes veiled Muslims face.[95] At the symbolic level, subordination stems from the charge that veiled women proceed from backwards socio-cultural practices in sharp contrast with emancipated modern western women. Concretely, little participation in the workplace and in civic life confirms that those differentially treated in Bill 94 are in a pre-existingly disadvantaged position. Substantive equality is the only approach that gives appropriate consideration to this factor. Baines  conceives of the unique contribution of substantive equality in terms of its ability to compare, not merely classify, disadvantages.[96] Comparison is able to situate the claim in larger power dynamics, whereas classification is an abstract mental operation limited to whether the legislation categorizes claimants contrary to the protected grounds.

Furthermore, a substantive approach seeks to achieve equality in outcome and result, not merely in opportunity. The mention of adverse effect in the opening article of Bill 94 can be construed to support such a result-oriented approach. Reasonable accommodation can be geared towards achieving equal outcome in treatment, not simply equal theoretical opportunities. While deriving a substantive equality commitment merely from the mention of ‘effect’ in Bill 94 is perhaps ambitious, it is not an isolated endeavour. Several interlocutors have applied other characteristics of substantive equality, namely a focus on group dynamics and a concern for structural inequality, to suggest improvements to Bill 94. We now turn to these arguments.

3- Majority collective values and group oppression

Both the PQ and the CSF underline the importance of considering group dimensions in the reasonable accommodation debate. They argue that Bill 94 unduly stresses individual rights to the detriment of collective values. This is consistent with substantive equality’s societal breadth. Specifically, the CSF criticizes open secularism, the basis on which accommodation is granted, as consecrating individual rights over Québec’s identitary values.[97] They deplore upholding individual freedom of religion Charter rights to the detriment of collective values such as Church/State separation and gender equality.[98] The takeaway is that focus on individuals obscures politicized group dynamics. While we disagree on the particular claim that open secularism threatens those collective values and point out that systemic oppression and subordination of minorities is not addressed in their brief, the CSF is right that secularism and accommodation dynamics play out at the collective level. Applying the comparative approach substantive equality mandates, the portrait is one where the identitary values against full-face veils are a proxy for the invisible, white, (post)catholic de souche majority seeking to dominate the visible, historically and socially marginalized (Muslim) fundamentalists/minority. To further complicate matters, Québécois de souche are a minority in Canada. This double dynamic of external subordination and internal oppression is key to understanding and improving Bill 94. As we suggested earlier, the accommodation debate is intimately linked to a wider identitary insecurity of Québécois. External identitary dissolution pressures and internal preservationist impetus need to be recognized and distinguished. In other words, it is misguided to make Muslim veiled women, a subordinated minority within Québec, pay the price for the subordination that Québec faces in Canada.[99] Whether the goal is to secure Québec’s identity within Canada or to achieve integration, this is an illegitimate and inefficient way to proceed.

4- Socio-economic rights

The Ligue argues for structural measures to further equality in the accommodation debate.[100] Along with the BTC[101],  it reasons that strengthening the justiciability of economic and cultural rights will go a long way to alleviate the structural inequalities new immigrants face and to promote their integration.[102] The Ligue‘s recommendations are consistent with substantive equality because they look at the actual effects of upholding gender equality as envisioned by the majority. The Ligue points out that banning full face veils in the name of gender equality would accentuate the isolation of an already oppressed group. On the contrary, inclusive policies encouraging social participation promote actual gender equality. For instance, a decent revenue and access to health are important avenues for achieving the full engagement of veiled Muslim women in Québec society. On that point, Bill 94 has the opposite effect. Preventing white collar employment and restricting access to health care and other public institutions relegates them home. The dynamic echoes Hoodfar‘s narrative concerning mandatory unveiling in Iran under Ataturk. While the official rationale was to modernize patriarchal practices, the legislation effectively relegated women, especially those from modest backgrounds, to the domestic sphere. Women lost the agency participation in the economy had afforded them, and the opportunity to network at social gatherings was seriously undercut.[103] A substantive equality approach catches these shortcomings because it pays close attention to the actual effects of laws. Seen in this light, the right to equality includes the right to socio-economic inclusion, something the exclusory effects of the veiling ban in Bill 94 runs counter to.

B- Substantive equality policies

1- Empirical approach: portrait of the situation

Substantive equality begins by looking at the lived reality of subordinated groups to which Bill 94 applies. A panorama of the employment difficulties pertinently exemplifies the systemic issues substantive equality could redress. First, immigrant women face disproportionately high barriers to entry in employment. While they are better educated with an average of 19% detaining a higher education degree compared to 13% in the general population, their unemployment rate is three times higher.[104] Inadequate education equivalency recognition and intersectional discrimination based on gender and stereotypes on pre-modern cultures partly explain this systemic discrimination.[105] When they do find work, it tends to be precarious, ‘dequalifying’[106] and disconnected from their training—those qualifications were likely determinativein obtaining the Québec Selection Certificate, suggesting a disconnect between the promises of immigration’s integration and the reality of employment opportunities.

2- Practical perspective: avoid isolating effect

Substantive equality demands that legislation be mindful of the lived effects of its provisions. The Canadian Civil Liberties Association issued the following statement: “En matière de politique publique, on peut penser qu’isoler davantage certaines femmes est contraire à tous les indices de prévention de la violence conjugale, de promotion de l’égalité économique ou de l’intégration sociale.”[107] Governmental policies should be attuned to fostering an inclusive environment when dealing with integration-related matters. Connecting integration with prevention of conjugal violence, the CCLA makes visible the risks that await when isolation takes over integration. Violence and precarity are arguably much more real and immediate dangers for gender equality than the disputed symbolic resonance of a full face veils. This brings us to the conclusion that Bill 94 seeks to protect the majority from symbolic insecurities regarding gender equality—founded or not. A genuine commitment to upholding the rights of women wearing full faced veils would be better advised to withstand the symbolic stirring they elicit instead of relegating them away from public spaces where their oppression will remain, albeit away from our eyes. Bill 94’s effect is to isolate women wearing full face veils from participation in the public forum and from benefitting public services. Substantive equality suggests that if Québec is serious about integrating Muslim women, in an interculturalist spirit of mutual exchange, it must not legislate them away from the public sphere. Much to the contrary, it must multiply the occasions to interface with this population in order to foster integration.

3- Long term approach

Substantive equality makes visible that Bill 94 is a superficial short-term fix to a long-term issue. The legislation seeks to achieve immediate gender equality by blinding a symbol evoking oppression, and to enforce secularism by suppressing the inextricably cultural and religious references of others. By contrast, substantive equality prioritizes long-term policies because it takes into consideration the political and historical context of groups and individuals. From voting rights to abortion decriminalization to equal pay demands, gender equality has been an incremental process characterized by long-term policies and diffused benefits. Because complex societal dynamics are the starting point of substantive equality policies, they are alert to the unintended side effects of drastic targeted changes such as the full-veil prohibition in Bill 94. As for secularism, substantive equality would be weary of conflating full face veils with religious symbols. Indeed, focus on group dynamics warrants a precautionary approach because it make visible latent anti-Muslim sentiment post 9/11 and the cultural meaning of veiling for recent immigrants. A substantive equality approach to sustaining secularism would rather bank on longer-term integration policies like inclusion in public schools, civic education, community networking and support to existing secular organisations within new immigrant communities to encourage gradual adoption of secular principles.

Québec Solidaire proposes a long-term flexible approach in line with substantive equality’s context-sensitive stance. Co-leader Françoise Davidraises red flags with regards to the unintended isolating effects of Bill 94 :

“Je ne veux exclure ni de l’école ni des 500 000 emplois que procurent la fonction publique et les services publics au Québec des femmes qui portent un voile, dans la mesure où ça ne les empêche pas de faire leur travail. Tout ce qui couvre le visage est exclu, bien sûr, mais j’aime mieux les intégrer par l’emploi que de les contraindre à rester chez elles, isolées, parce que dans ce cas-là, je pense qu’on travaillerait contre l’intégration”.[108]

While the principled stance is against full face veiling, the party adopts a flexible pragmatic approach in its brief: “Il ne saurait être question, par exemple, de refuser l’accès à des soins à une femme portant un niqab ou une burka. Envers les nouvelles arrivantes, il faut faire preuve d’un peu de patience tout en demeurant ferme sur l’aboutissement d’une démarche visant à montrer son visage.”[109] This discretion strikes us as the most balanced attitude towards achieving integration, maintaining both long-term gender equality and secularism agenda without sacrificing the substantive equality of subordinated groups in the short-term.

3-Adressing structural roots of inequality

Gender inequality and religious-borne oppression are not created in a vacuum. Structural factors such as poor access to employment, education, housing and public services can create and reinforce those dynamics. In order to foster integration, social friction and meaningful engagement with the promises of western liberal democracies, policies need to redress these underlying differential currents. As the COR points out, providing realistic opportunities to fully enjoy civic participatory rights, especially in the form of access to employment, is more deterministic to gender equality than regulating the attire of Muslim women.[110] Substantive equality supports such initiatives, as they would empower women to make their own choices on meaningful issues. Arguably, gender equality is more about significant possibilities to pursue advanced studies, to live in decent conditions independently and to have access to public services providing an array of neutral information and perspectives in order to make informed choices about one’s life. Substantive equality thus calls for integration policies providing fully veiled Muslim women the tools to mitigate and eventually emancipate from the oppressive gender and religious dynamics they may face both within their group and in society at large.

Conclusion

Bill 94 is an inadequate topical solution for a systemic problem. It attempts to suppress signs of difference without actually furthering the integration of visible minorities, especially fully veiled Muslim women, the unspoken targets of the legislation. Many Bill 94 interveners from the civil society have dwelled upon Québec’s unsolved position within Canada, confirming that the reasonable accommodate debateis a proxy for national identity debate. We have sought to demonstrate that the legislation creates a false dichotomy between full face covering practices and secularism as well as  gender equality. Undue hardship is not particularly relevant to veiling accommodation. Security, communication and identification are for the most part moot issues. Bill 94 is nevertheless useful to tease out hitherto implicit stereotypes and to advance constructive substantive equality alternative. The latter provides a relevant framework of analysis  for effective integration policies. It militates for long-term empowering solutions crafted from the lived realities of veiled Muslim immigrants. Once more veiled women infiltrate circles of power, they will either shed fully covering veils or, perhaps more interestingly, have succeeded in once again redefining the meaning of this polysemic symbol.

Bibliography

 

general

gender equality

  • Action Travail Femmes, La reconnaissance des diplômes et des compétences: difficultés et impacts chez les femmes immigrantes(Montréal: Action Travail Femmes, 2009) online: <http://www.atfquebec.ca/files/atf-06.2009-rapport-recherche-rac.pdf&gt;.
    • Bill 94 am. proposals, online: <http://www.assnat.qc.ca/Media/Process.aspx?MediaId=ANQ.Vigie.Bll.DocumentGenerique_45153&process=Default&token=ZyMoxNwUn8ikQ+TRKYwPCjWrKwg+vIv9rjij7p3xLGTZDmLVSmJLoqe/vG7/Ywzz&gt;.
    • Beverley Baines, “Is Substantive Equality A Constitutional Doctrine?” in Ysolde Gendreau, ed., La doctrine et le développement du droit/Developing Law with Doctrine (Montreal: Les Editions Thémis, 2005) 59 p. 99-100.
    • “Code de Vie”, Hérouxville municipality, 2007.
    • Caylee Hong, “Feminists on the Freedom of Religion: Briefs on Québec’s Proposed Bill 94” J.L. & Equality [forthcoming in 2011].
    • Conseil du statut de la femme, “Affirmer la laïcité, un pas de plus vers l’égalité réelle entre les femmes et les hommes”, March 28th 2011. Online: <http://www.csf.gouv.qc.ca/modules/fichierspublications/fichier-29-1409.pdf&gt;.
    • Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180, 34 UN GAOR Supp. No. 46 at 193, UN Doc. A/34/46 (1981) art. 5(a).
    • Devon Cardabo & Mitu Gulati, “The Fifth Black Woman” (2001) 11 J. Contemp. Legal Issues 701.
    • Dianne Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences”, (2001) 13 CJWL 37.
    • Homa Hoodfar, “The Veil in Their Minds and On Our Heads: The Persistence of Colonial Images of Muslim Women”, (1994) R.F.R. 22:5-18.
    • Iris Marion Young, “Structural Injustice and the Politics of Difference”, in Anthony Simon Laden and David Owen, eds., Multiculturalism and Political Theory (Cambridge: Cambridge University Press, 2007) 60.
    • Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”, (1989) U. Chicago Legal F. 139.
    • Leti Volpp, “Feminism and Multiculturalism”, 101 Colum. L. Rev. 1181-1218 (2001).
    • Nathalie Des Rosiers, “Projet de loi 94 port du niqab une loi inutile” Editorial, Le Devoir (3 April 2010) online: Le Devoir <http://www.ledevoir.com/politique/Québec/286333/projet-de-loi-94-port-du-niqab-une-loi-inutile&gt; .
    • Quebec, National Assembly, Hansard of the Committee on Institutions,  Vol 42 No. 6 (31 March 2011) online: <http://www.assnat.qc.ca/fr/travaux-parlementaires/commissions/ci-39-2/journal-debats/CI-110331.html&gt;.
    • R. v. Gruenke, [1991] 3 S.C.R. 263 p. 299.
    • Roch Côté, « Françoise David : la nouvelle immigration nous force à repenser notre laïcité ». L’actualité, 4th Nov. 2009. Online: <http://www.lactualite.com/societe/francoise-david-la-nouvelle-immigration-nous-force-repenser-notre-laicite&gt;.
    • Shirene Razack, “The ‘Sharia Law Debate’ in Ontario: The Modernity/Pre-Modernity Distinction in Legal Efforts to protect Women from Culture”, (2007) Fem. Legal Stud. 15:3-32.
    • Tanisha Ramachandran, “No Woman Left Covered: Unveiling and the Politics of Liberation in Multi/interculturalisme”, 27, Canadian Women and Multiculturalism, nos 2, 3, 2009, 33.
    • Wassyla Tamzali, “El Burka como excusa”. Saga : Madrid, 2011.
    • Yolande Geadah, Femmes voilées, intégrismes démasqué. (Montreal: VLB 1996).
    • Québec Solidaire, Commitment, “intercultural secularism” (2008) online: <http://www.Québecsolidaire.net/files/QS-Commitments-2008.pdf&gt;.

freedom of religion

  • Abdelfattah Amor, Étude sur la liberté de religion ou de conviction et la condition de la femme au regard de la religion et des traditions, UN ESC, 58th Sess., Supp. No. 2, HRC Doc. E/CN.4/2002/73 (2002) online:  <http://www2.ohchr.org/english/issues/religion/docs/E.CN.4.2002.73.Add.2_fr.pdf&gt;.
  • Commission scolaire Marguerite-Bourgeoys v. Multani, 2004 CanLII  31405 (QC C.A.)
  • Loyola High School v. Courchesne, 2010 CanLII 2631 (Qc. Sup. Ct.) online: <http://canlii.ca/t/2b6wb&gt; aff’d  2010 QCCA 1786.
  • Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256.
  • Sébastien Grammond, “Conception canadienne et québécoise des droits fondamentaux et de la religion : convergence ou conflit?” (2009) 43 R.J.T. 83, 88.
  • Syndicat Northcrest v. Amselem, [2004] 2 SCR 551, 2004 SCC 47.

 

 

reasonable accommodation

  • Commission des droits de la personne et des droits de la jeunesse c. Gaz métropolitain inc. 2008 QCTDP 24.
  • Paul Eid & Pierre Bosset for Commission des droits de la personne et de la jeunesse. Reflexion document, “La Charte et la prise en compte de la religion dans l’espace public” (June 2008).

 

secularism

security

identification

 

Substantive equality

All background documentation is aggregated here: http://www.delicious.com/maroussia/writ496


[1] An act to establish guidelines governing accommodation requests within the administration and certain institutions, Bill 94, 2010, 39/1 online: <http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-94-39-1.html > [Bill 94].

[2] Québec lost its last referendum by 0.42% in 1995, online: Directeur Général des Élections du Québec

< http://www.electionsQuébec.qc.ca/francais/tableaux/referendum-1995-8481.php&gt;.

[3] Michel Lalonde’s Speak White poem best illustrates the domination of English in Québec, online : You Tube <http://www.youtube.com/watch?v=sCBCy8OXp7I&feature=related&gt;.

[4] Charter of the French Language, L.R.Q. 1977, c. C-11 [Bill 101].

[5] See “Mes Aïeux”—my ancestors—, a music group which romanticizes the notion of ‘return to the earth’, the rural version of pre-industrial Québec with numerous families and simple life values. Mes Aïeux, 2006, “Dégéneration” online: <http://www.dailymotion.com/video/xs9z2_mes-aieux-degeneration_music&gt;.

[6] Jacques Parizeau, “Post-referendum”, concession speech, 1995 online: <http://www.dailymotion.com/video/xmj2j_jacques-parizeau-votes-ethniques_news&gt;.

[7] We acknowledge that choosing a definition of the term is political. We retain the definition of the Bouchard Taylor commission (see infra note 19): “the relaxation of a norm or Statute in favour of an individual or group”. A strict application of the norm would threaten her Charter rights. This approach is premised on the recognition that substantive equality must go beyond treating alike cases alike. Reasonable accommodation is limited by the concept of undue or excessive hardship. The latter echoes the Oakes test for upholding Charter infringements under s. 1 of the Canadian Charter. See infra, note 34 for an application of the Oakes test to Bill 94. The Oakes test tolerates the infringement of individual Charter rights if, pursuant to a pressing and substantial objective, the overall beneficial effect of the impugned law supersedes the balance of the negative effects on the affected individual (proportionality test). Indeed, the Bouchard-Taylor commission explicitly cites the case as a model for reconciling individual rights and collective values (see infra note 19 at 175).

[8] For a visual description, see In graphics : Muslim veils, online: BBC <http://news.bbc.co.uk/2/shared/spl/hi/pop_ups/05/europe_muslim_veils/html/1.stm&gt;.

[9] The Taqiyah is a headcap for Muslim men wishing to promote modesty. Other religions also promote veils and head covering. The Jewish concept of modesty Tznius promotes head covering, in the form of a hat, a headscarf or a veil. In the Hasidic Orthodox Jewish tradition, women are encouraged to wear a wig (sheitel).  Men wear the kippa in reference to the Talmudic injunction “Cover your head in order that the fear of heaven may be upon you.” (Babyloniam Talmud, Shabbat, 156b). The Christian religion also promotes head covering : “But every woman that prayeth or prophesieth with her head uncovered dishonoureth her head: for that is even all one as if she were shaven” (1 Corinthians 11:5). Head covering is also part of non-religious cultural practices. Some Latin American indigenous and European gypsy women also veil.

[10] Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256 at para. 26 [Multani 2].

[11] The Court of Appeal conceded that the ban infringed Multani’s freedom of religion but found that the limitation was justified under s. 1 of the Charter for security reasons. Commission scolaire Marguerite-Bourgeoys v. Multani, 2004 CanLII 31405 (QC C.A.) [Multani 1].

[12] Canadian Charter of Rights and Freedoms, s. 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter].

[13] R. v. Oakes, [1986] 1 S.C.R. 103 [Oakes].

[14] Québec also negotiated an arrangement with the federal government to select Québec immigration candidates despite the ‘Naturalization and Aliens’ federal competence (Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11s. 92(25)). In addition to Canadian immigration criteria, candidates must be eligible for the Québec Selection Certificate. The unique valorisation of French fluency testifies to a distinctive approach to immigration and provides support for Québec’s distinct societal values and vision of multiculturalism.

[15] Multani 1, supra note 11, para. 54 -86. See especially para.86 where it is compared to a weapon and a dagger.

[16] The ‘Code de vie’ encouraged women to dress as they see fit. The insistence on autonomous choice is ironic, should women assert the right to choose to veil themselves. The wording of the ‘Code de vie’ is symptomatic of the pitfall of essentialising freedoms on the autonomy discourse hallmark of liberal ideologies.

[17] Spanish cross-cultural expert Magdalena Arcia Prieto echoes this sentiment. See Levantine, infra note 56. But who are the Romans? Spain—perhaps more than Québec—is a mixed polity. Its imperial past evokes the thought that ‘we are here because you were there’. North African immigration can be linked to the colonial past of Spain and Europe. Yet the debate centers around Spanishness. This obscures the historical roots of migration. The situation of Catalonia, an autonomous community in the Federalist Spain structure, is similar to Québec in terms of language, identity and cultural basis for political claims to sovereignty. But Cataolonia was a separate country and controlled a naval empire stretching to modern Italy until the Bourbon dynasty. Remnants of Catalan can still be heard in modern Sardinia. The ‘Romans’ of Catalonia are therefore an intrinsically mixed polity. As for Québec, ‘our territory’ is first and foremost Iroquois, Mohawk, Cree, etc. While some independendists recognize that sovereignty would also entail greater autonomy for first nations, the pre-contact ‘Romans’ are usually invisible in the narrative. The Simone de Beauvoir Institute underlines that Bill 94 and the BTC perpetuates the dynamic of Western hosts versus racialized guests, negating the history of colonial and patriarchal oppression of native peoples. See Simone de Beauvoir Institute, “Déclaration de l’Institut Simone de Beauvoir à propos du projet de loi 94”, (18 May 2010).

[18] Gérard Bouchard & Charles Taylor, “Building the Future: a Time for Reconciliation”, The Consultation Commission on Accommodation Practices Related to Cultural Difference [BTC].

[19] Ibid. at 275.

[20] Ibid. at 236.

[21] Bill 94, supra note 2. s. 2.

[22] Ibid. s. 2(1).

[23] Ibid. s. 2(2), (4)(5).

[24] Ibid. s. 2(3), (4)(6).

[25] Ibid.  s. 3.

[26] Ibid. s. 1. “An adaptation of a norm or general practice, dictated by the right to equality, in order to grant different treatment to a person who would otherwise be adversely affected by the application of that norm or practice constitutes an accommodation.”

[27] In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 R.C.S. 536, a uniform aerobic test needed to be adapted for a female firefighter candidate. In Commission des droits de la personne et des droits de la jeunesse v. Gaz Métropolitain, 2008 QCTDP 24 [Gaz Metro], a neutral norm in pre-employment test and training had dispropotionate effects on women applicants. The Court imposed a duty to modulate a test fit to women’s different—not inferior—kinetic arrangement. The court even went beyond accommodation, to examine the norm itself, and how it reflected dominant social norms. We proceed with a similar critique of how Bill 94’s singles out of uncovered faces in accommodation practices in part IV below.

[28] Charter of Human Rights and Freedoms, R.S.Q. c. C-12[Québec Charter].

[29] Bill 94, supra note 2 s. 4.

[30] Gaz Metro, supra note 25. para. 400. An employer who refuses to modulate a norm for a minority group bears the burden of proof that accommodation would impose her undue hardship ‘contrainte excessive’.

[31] Bill 94, supra note 19 s. 1 ‘in favour of a person’.

[32] Ibid., s. 6(2). The French version “pour des motifs liés à la sécurité” seems more permissive in that it only requires a link between the alleged security, while the English version “security (…) warrants it” suggests a  higher threshold because security must ‘warrant’ denial of accommodation.

[33] Bill 94 may not withstand a constitutional challenge. It potentially violates freedom of political and religious expression, freedom of religion and equality guarantees. These violations would not be saved under s.1. First, the objective of presenting a secular state is unconnected to the appearance of seekers of government services. Second, gender equality is not rationally connected to the veiling ban, as many other sexist signs are not covered. Lastly, there are many alternatives to achieving the goal of integration which do not impair the constitutionally protected rights of Muslim veiled women. In sum, all three objectives are likely to fail the Oakes test, albeit at different stages of the inquiry. See Canadian Civil Liberties Association, infra note 78 at 4-6.

Bill 94 may also be overbroad, violating the principles of fundamental justice in s. 7 of the Charter. In the criminal law context, a law forbidding sex offenders to loiter ‘ in or near a school ground, playground, public part or bathing area’ was struck down as too vague, given the unrestricted geographical and temporal scope. In effect, a convicted sex offender in a park where no children were present could be charged. See R. v. Heywood, [1994] 3 S.C.R. 761. Similarly, Bill 94 can be found too vague because it encompasses both providers and seekers of public services. The latter’s appearance have little to do with promoting secularism, may cover women who are not victim of gender inequality and apply to women who are otherwise fully integrated in Québec society.

[34] “(…) [S]i le niqab est un signe de rejet de la modernité et de la société occidentale, c’est une forme d’expression politique qui doit être respectée.” Nathalie Des Rosiers, Projet de loi 94 -port-du-niqab-une-loi-inutile,” Editorial, Le Devoir (3 April 2010) [CCLA]. Wassyla Tamzali sees the Burqua as a proxy for a vision of society in complete contradiction with progress. Wassyla Tamzali, El Burka como excusa. (Madrid: Saga, 2011).

[35] Ferdinand de Saussure, Course on General Linguistics, (Paris: Payot 1972).

[36] De souche literally means Of strain. It refers to genealogical French origins of Québécois.

[37] Muslim migrants are diverse in Québec. Presumably, most Muslim newcomers come from former French colonies (Algeria, Morocco, Lebanon, Egypt, Cameroun). See Immigration et Communautés Culturelles Québec, “Bulletin statistique sur l’immigration permanente 2e trimestre et six premiers mois de 2011″ (Québec: 2011). Note that the last three countries harbour a multiplicity of faiths and may be incorrectly identified as Muslims. Anecdotal evidence while working in Park-Extension suggests the same is true for other ‘brown’ migrants from South East Asia; perception tends to conflate brown immigrants with the Muslim faith.

[38] Syndicat Northcrest v.  Amselem, [2004] 2 SCR 551, 2004 SCC 47 [Amselem]. The Supreme Court of Canada reversed the Québec Court of Appeal concerning the accommodation of a Sukkah—a temporary exterior hut—despite condominium bylaws forbidding exterior alterations. The diverging views at the provincial and federal level hinge on a different conception of religious obligations between the Catholic and Protestant faiths; for the former it is a personal obligation at one’s cost that should be publicly ‘invisible’, while for the latter the costs of a profound conviction should not burden the believer. See Sébastien Grammond, “Conception canadienne et québécoise des droits fondamentaux et de la religion : convergence ou conflit?” (2009) 43 R.J.T. 83, at 88. Again, the reasonable accommodation litigation is a proxy for Québec national identity. Specifically, Amselem is telling of the diverging views concerning multiculturalism between the two levels of government. The Supreme Court decision can be interpreted as reigning in Québec particularism in line with the rest of Canada, as in Multani 2.

[39] But courts can always save an infringement of freedom of religion under s.1 of the Charter.

[40] BTC, supra note 19 at 144.

[41] Abdelfattah Amor, Étude sur la liberté de religion ou de conviction et la condition de la femme au regard de la religion et des traditions, UN ESC, 58th Sess., Supp No. 2, HRC Doc. E/CN.4/2002/73 (2002) at 97-98.

[42] BTC, supra note 19 at 39-43.

[43] The exact meaning of interculturalism remains to be defined. The BTC proposed a Parliamentary Commission to adopt an official text defining the notion.

[44] This approach is similar to the principle of common but differentiated responsibility principle in international environmental law. Integration of visible minorities is common problem requiring change from both the minority and majority.

[45] BTC, supra note 19 at 149.

[46] Québec never formally adopted the Canadian Charter. In an infamous episode often referred to as the ‘night of the long knives’. Unbeknownst to Québec’s Prime Minister, Canadian Prime Minister Pierre Eliott Trudeau reached an agreement with all other provincial PM’s during after hours negotiations. The process was considered a treason in Québec.

[47] Conseil du statut de la femme, “Affirmer la laïcité, un pas de plus vers l’égalité réelle entre les femmes et les hommes”, March 28th 2011 [CSF].

[48] Ibid. at 64.

[49] R. v. N.S., 2010 ON. C.A. 670, leave to S.C.C. granted, [2011] CanLII 14361 [N.S.].

[50] Kirk Makin, “Groups split on whether woman should be allowed to testify wearing veil” The Globe and Mail (10 June 2010).

[51] We acknowledge that the support for a ban in Ontarian criminal courts cannot be imported directly in Québec’s reasonable accommodation debate. Ontario is part of the ‘rest of Canada’ and lives multiculturalism differently than historically undermined French-speaking Québécois. The comments above are nevertheless pertinent to our discussion, as they indicate that a pan-Canadian entity from ‘within’ the targeted community supports arguments pertaining to gender inequality.

[52] The Coalition regroups various organisations, including university gender advocacy centers, women studies faculties, legal clinics and multicultural associations, online: <http://nonbill94.wordpress.com&gt;. See also “Unveiling Discrimination: The Problems Presented in Bill 94 Summary Submission of the No Bill 94 Coalition”.

[53] Both the CSF and the Parti Québécois (PQ)agree that the legislation would impose double discrimination against Muslim women: “Mais ce qui m’a frappée, c’est l’argument justement du Conseil du statut de la femme à ce sujet-là. Parce que ce que nous disait Mme Pelchat, elle disait qu’elle ne donnerait pas, et le conseil, son aval à un projet de loi qui aurait pour effet d’interdire un seul signe religieux, c’est-à-dire le niqab et la burqa, celui porté par des femmes, et de permettre tous les autres portés par des femmes ou par des hommes. Cela discriminerait doublement les femmes, femmes et musulmanes.” Québec, National Assembly, Hansard, No. 170 (9 February 2011) (Louise Beaudoin).

[54] CSF, supra note 48 at 16-19. This position is echoed internationally. Other countries such as Spain also justify laws prohibiting full veiling with gender oppression arguments. The immigration minister, Corbacho made the following comment:  “I’m respectful of individual religious beliefs, but to completely hide a woman behind a piece of cloth, for however much religious symbolism it has, is a radical clash with our society and a society that supports the advancement of equality between men and women”. Jessica Proett, “Barcelona Bans the Burka, One Week Later Spain Follows Suit” Levantine Cultural Center (1 July 2010) [Levantine].  This comment is symptomatic of Razack‘s critic concerning western blindness to its own gender discrimination. Gender inequality is seen as an essentially foreign problem imported in western democracies.

[55] Shirene Razack, “The ‘Sharia Law Debate’ in Ontario: The Modernity/Pre-Modernity Distinction in Legal Efforts to protect Women from Culture”, (2007) Fem. Legal Stud. 15:3-32 [Razack].

[56] Leti Volpp, “Feminism and multiculturalism” (2001) 101 Colum. L. Rev. 1181.

[57] COR, infra note 100 at 3.

[58] Homa Hoodfar, “The Veil in Their Minds and On Our Heads: The Persistence of Colonial Images of Muslim Women”, (1994) R.F.R. 22:5-18 [Hoodfar].

[59] Intersectional discrimination recognizes that the lived identities of people escapes the neat categorisation of separate grounds as stated in the Charter. For example, individuals who are at the confluence of  gender and racial discrimination live a qualitatively different oppression than simply the addition of the effects of these two vulnerabilities. SeeKimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”, (1989) U. Chicago Legal F. 139.

[60] The Québec Charter already contains a mention of gender equality in its preamble. We may look to the clout of the Canadian Charter preamble for indications on the strength of such mention. In litigation, the mention of the supremacy of God in the preamble has not been given strong clout, even as an interpretative help. However, a first instance judgment concerning mandatory teaching of secular concepts in a catholic high school allegedly violating freedom of religion referred to the supremacy of God to uphold the private school’s right to teach catholic precepts. See Loyola High School v. Courchesne, 2010 2631 (Qc. Sup. Ct.) para. 329, aff’d  2010 QCCA 1786.Similarly, the court might resort to the mention of gender equality in the Québec Charter preamble to buttress its decision in support of such a right. The existing protection of gender equality in the Québec Charter might be sufficient for jurisprudence to evolve and reflect increasing preoccupation with the rights of women. In this light, an explicit hierarchy appears unnecessary.

[61] “Elle [the law] a aussi pour objet de modifier la Charte des droits et libertés de la personne afin de consacrer le statut particulier de l’égalité entre les femmes et les hommes dans cette même Charte”. Several versions of the amendment proposals, slightly differing in wording, were rejected. See Bill 94 am. proposals.

[62] Québec, National Assembly, Hansard, No. 170 (9 February 2011) (Louise Beaudoin).

[63] R. v. Gruenke, [1991] 3 S.C.R. 263 [Gruenke].

[64] Ibid. at 26.

[65] Québec, National Assembly, Hansard, No. 170 (9 February 2011) (Stéfane Bédard).

[66] Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180, 34 UN GAOR SupatNo. 46 at 193, UN Doc. A/34/46 (1981) art. 5(a) [CEDAW).

[67] Caylee Hong, “Feminists on the Freedom of Religion: Briefs on Québec’s Proposed Bill 94” J.L. & Equality [forthcoming in 2011].

[68] Chaire Bonenfant, “Loi établissant les balises encadrant les demandes d’accommodement dans l’Administration gouvernementale et dans certains établissements”, Brief submitted to Parliamentary Commission, (6 May 2010) at 9.

[69] BTC, supra note 19 at 251.

[70] Bill 94, supra note 2 s. 5.

[71] The veil must be worn when in presence of men that could potentially marry the believer. The woman does not wear the veil in presence of other women or family members.

[72] For a fuller discussion on agency in identity performance and a sophistication of the discrimination analysis see Devon Cardabo & Mitu Gulati, “The Fifth Black Woman” (2001)  11 J. Contemp. Legal Issues 701.

[73] Bearing in mind the veil is a polysemic symbol and might be worn for political, social and cultural reasons.

[74] This echoes the reasoning in section II(B) about secularism. The focus is on neutral decisions, not the appearance of the decision maker.

[75] The Oakes test evaluates whether upholding other’s rights is a pressing and substantive objective, and whether the law is proportional to those objectives. The second inquiry is composed of three criteria: a rational connection between means chosen and the objective, minimal impairment of the violated right and whether the importance of the objective relative to the importance of the negative effects is proportional.

[76] Canadian Council on American-Islamic Relations, “Mémoire concernant le projet de loi 94”, Brief submitted to Parliamentary Commission, (7 May 2010) at 8.

[77] Paul Stokes, “Murder suspect fled under Muslim veil” The Telegraph (20 December 2006).

[78] Michel Foucault, Surveiller et punir (Paris: Gallimard, 1975) at 218-19.

[79] Québec Bar Association, “Balises encadrant les demandes d’accommodement”, Brief submitted to Parliamentary Commission, (30 April 2010) at 6.

[80] Ibid. See also Québec Solidaire, ” Pour un débat large et public sur la laïcité de l’État québécois”, Brief submitted to Parliamentary Commission, (6 May 2010) at 10 [Québec Solidaire]. The political party proposes to limit the scope of s. 6 so that only ‘justified motives’ of security, communications and identification warrant denial of accommodation. Moreover, theses motives must be explicitly invoked by the state , therefore shifting the onus on the State to provide clear guidelines ex ante.

[81] Canadian Civil Liberties Association, “Soumission de l’association canadienne des libertés civiles sur le projet de loi 94”, Brief submitted to Parliamentary Commission, (5 May 2010) at 7.

[82] N.S., supra note 50.

[83] But forcing a women to testify without her Niquab may distort her demeanour and mislead the hearing. Moreover, the Crown may abdicate calling witness to testify over concerns that she would have to unveil, in which case communication would be completely pre-empted. The adverse effects of enforcing unveiling may therefore exceed the benefits in terms of communication. See Ibid. para. 80.

[84] Ibid. para. 53.

[85] Ibid. para. 79.

[86] Ibid. paras. 57-59.

[87] Bill 94, supra note 2. s. 1 para. 2.

[88] Québec Charter,  supra note 29 s. 10 and Charter, supra note 13 s. 15.

[89] BTC also rejected formal equality for a more ‘nuanced, flexible and inclusive approach’. See BTC, supra note 19 at 162.

[90] Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 [Andrews].

[91] Andrews, supra note 83 para. 37.

[92] The similarly situated principle stands for the idea that things alike should be treated alike. It has been criticized as ethically unacceptable since it allows for the American segregation doctrine of ‘separate but equal’. See Baines, infra note 94 at 67.

[93] Social, not legislative distinctions should be the starting point of equality analysis: “Legislation becomes the contingency that must be assessed from the perspective of its contribution to the harms of oppression and subordination”. Beverley Baines, “Is Substantive Equality A Constitutional Doctrine?” in Ysolde Gendreau, ed., La doctrine et le développement du droit/Developing Law with Doctrine (Montreal: Les Editions Thémis, 2005) 59 at 99-100 [Baines].

[94] Symes v. Canada, [1993] 4 S.C.R. 695 [Symes].

[95] A crucial nuance lies in recognising that even in subordination dynamics, people have agency. For a discussion on the suppression of agency as a domination dynamic, see supra note 55 and accompanying text.  A substantive equality approach seeks to recognize the power dynamics and yet, at the same time, avoid victimisation or ascription of passive role for those who are systemically underprivileged.

[96] Baines, supra note 94 at 99.

[97] “(…) [E]n favorisant les droits individuels sans présenter de contrepoids en ce qui concerne les valeurs collectives, la “laïcité ouverte” enferme la société dans une logique individualiste qui ne permet pas de contrer la politisation des religions qui prend la forme de l’intégrisme ou de la droite religieuse” CSF, supra note 45 at63.

[98] We argue in s. II(c) that the collective goal of gender equality is compatible with individual veiling practices. But for the sake of argument, we accept the PQ‘s position that there is a conflict between the two.

[99]  Along the same lines, Québec Solidaire denounces the focus on a religious minority and calls for a full fledged debate Québec secularism. “C’est très facile de pointer une infime minorité de femmes qui portent le niqab ou la burka. Ce serait plus courageux d’initier véritablement un débat impliquant toute la collectivité québécoise.” See Québec Solidaire,  supra note 74 at4.

[100] Ligue des Droits et Libertés, “Le projet de loi 94 : un projet de loi qui dénature la notion d’accommodement raisonnable et qui nuit à l’intégration”, Brief submitted to Parliamentary Commission, (7 May 2010) at 5 [Ligue].

[101] BTC, supra note 16 at 270, recommendation E3 and Québec Charter, supra note 30 s. 39-48.

[102] Current jurisprudence does not support a positive obligation on the state to uphold socio-economic rights. In the controlling case, the majority rejects the claim that welfare differential treatment for beneficiaries under 30 years old violates the age equality provision in s. 15 or the security interest in s. 7 of the Canadian Charter. See Gosselin v. Quebec, [2002] SCC 84 [Gosselin]. As for the Québec Charter, economic and social rights are not subject to an inoperability remedy per s. 52. Their clout is limited to damages per s. 49.

Cultural rights in s. 43 of the Québec Charter have not yet been tested.

[103] Hoodfar, supra note 59.

[104] COR, infra note 111 at 4-5.

[105] Action Travail Femmes, La reconnaissance des diplômes et des compétences: difficultés et impacts chez les femmes immigrantes (Montréal: Action Travail Femmes, 2009) [ATF].

[106] Ibid. at 28.

[107] CCLA, supra note 35.

[108] Roch Côté, “Françoise David : la nouvelle immigration nous force à repenser notre laïcité”. L’actualité, 4th Nov. 2009.

[109] Québec Solidaire, supra note 81 at 10.

[110] Communication, Ouverture et Rapprochement Interculturel, “Projet de Loi 94: inclure ou exclure?”, brief submitted to Parliamentary Commission, (6 May 2010) p.1 [COR] .

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