Considering the Arguments: The Constitutional Challenge of Québec’s Bill 62

Illustration: Canadian Charter of Rights and Freedoms

On Wednesday November 8th, one day after the Canadian Civil Liberties Association (CCLA) and the National Council of Canadian Muslims (NCCM) filed a lawsuit in Québec Superior Court challenging the constitutionality of section 10 of Bill 62, McGill’s Muslim Law Students’ Association hosted a panel discussion. The panelists, three constitutional law professors at McGill’s Faculty of Law, spoke to the possible arguments to be made both for and against the constitutionality of Québec controversial “face-covering bill”.

The lawsuit focuses on s.10 of the Act which says:

Personnel members of a body must exercise their functions with their face uncovered. Similarly, persons who request a service from a personnel member of a body referred to in this chapter must have their face uncovered when the service is provided.

The panelist charged with challenging the constitutionality of the Act echoed the reasoning of the CCLA and the NCCM: the law both on its face and in its effect targets women of a specific, religious minority, disadvantaging this group and perpetuating harmful stereotypes. While the objectives of state neutrality and religious accommodation may be constitutional, the intersecting grounds of religion and gender make the targeting of a specific group extremely problematic.

There is a lot to learn from pre-supposing the arguments of the Québec government as it mobilizes to defends Bill 62. While the panelist charged with defending the constitutionality of the Act did so reluctantly, he also raised a very interesting consideration: if the statute can be read as delegating discretion to public officials, allowing them to require people to remove face coverings on a case by case basis in situations where they consider it necessary for communication, identification, and/or security reasons, then the potential for discrimination arises less from the statute itself and more from this individual, decision-making. If this is the interpretation, the standard of review for this decision-making is reasonableness not correctness, a standard which is supposed more flexible and consistent with the nature of discretionary decision-making (Doré).

Comparisons between this potential argument can be made with the Little Sisters Supreme Court case of 2000. In this case, a provision of the Customs Act prohibited the importation of “obscene” material. Customs officials targeted shipments to an erotic bookstore in Vancouver and attempted to prevent their entry into Canada. The law was upheld under a s.1 Charter analysis while the implementation of the law by customs officials was found to be discriminatory and require a remedy. The take away from this case was that laws do not need to be crafted in such a way as to guarantee that they respect our Constitution. In a way, all that is required is a “safety valve”, room in the law for it to be applied constitutionally.

That being said, there are recent directives issued by Québec’s Justice Minister Stéphanie Vallée that, if followed, will lead to unreasonable application of the law. For example, Vallée said that “at public libraries, a person with a covered face is free to roam the stacks but would be required to uncover their face to communicate with staff”. There is no identification or public safety purpose here and many fail to see how a woman wearing a niqab, asking to loan a book, cannot just as effectively communicate this desire to library staff as someone without a face-covering.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.