Constitutional Violations in Bill 62: The Culture of Québec Nationalism
The moniker of religious neutrality has been the chief defense of the newly passed Bill 62. Its title, “Act to foster adherence to State religious neutrality,” outlines a singular purpose in its enactment. Its invocation of a secular state is a reminder of the Quiet Revolution and the French constitutional principle of laïcité. This reference evokes the notion of a distinct society, in that Québec is distinguished from the rest of English Protestant Canada because of its initial settlement as a French Catholic colony. Bill 62 is therefore not only about religious neutrality; it is an assertion of Québec’s distinct culture and identity.
With this bill, the Liberal government is attempting to foster a specific cultural identity for Québec. The government pushes for secularity, but refuses to remove the crucifix at l’Assmblée nationale despite it being an overt religious symbol, because Catholicism is an important part of Québec’s French heritage. It is then evident that the bill goes beyond secularity. Premier Philippe Couillard hints at the exclusion of those targeted by the bill in his defense amid criticisms of discrimination: “It’s part of communications. It’s a question in my mind that is not solely religious. It’s human.” He carefully constructs a narrative in which those who do not wear the niqab or burka are considered human, while those who do wear them are considered alien. This sort of rhetoric is dangerous; it makes the alienated minority susceptible to inhumane treatment. Their dehumanization becomes state sanctioned. This language is the sort that increases anti-Muslim sentiment and violence. The encouragement embedded in his defense violates the right to equality, as outlined in the Charter of Rights and Freedoms. Couillard is more interested in creating a stronger Québécois society than he is in protecting individual liberties.
Bill 62 is therefore not only about religious neutrality; it is an assertion of Québec’s distinct culture and identity.
Furthermore, Bill 62’s requirement of unveiling in government funded establishments such as in transit, libraries and hospitals excludes certain Muslim women from public spaces and disregards Canada’s policy of multiculturalism. Prime Minister Pierre Trudeau committed to a policy of multiculturalism in 1971 to counter a report about Canada’s bicultural identity of French and English. The report found that Québec was inadequately represented in federal institutions, and led to the adoption of French as one of Canada’s official language. However, Trudeau’s adoption of a multicultural policy is controversial in Québec. They want recognition beyond language; they want recognition of their distinct society. A multicultural policy puts Québécois equal to all other ethnic identities, as opposed to a bicultural policy that would emphasize the importance of Québec culture within Canada. Multiculturalism went on to be entrenched in the Charter of Rights and Freedoms, while biculturalism remains a largely unpopular term to describe Canada. The advent of Bill 62 is only a reiteration of the province’s assertion of Canada’s biculturalism. It emphasizes the French policy of laïcité over the Canadian multicultural policy. This bill intentionally excludes Muslim women who wear a niqab or burka from life in Québec by making public spaces inaccessible. In an effort to distinguish themselves, Québec tries to erase the cultural heritage of other ethnic groups.
Quebec is not unique in its decision for a ban on face coverings. Its mimicry of the French policy follows its desire to be a distinct society, a term that traces its roots back to the Quiet Revolution. During this period, Québec nationalism grew to emphasize the biculturalism of French and English in Québec because of its initial identity as a French settlement until its surrender to the English after the Seven Years War. Since then, the Francophone majority in the province has been fighting against cultural assimilation into the English majority of the country. Despite Montreal’s cultural diversity, Québec remains a largely homogenous society linguistically, especially after the implementation of Bill 101 (also known as the Charter of French Language) in the 1970s. The bill asserted that French is the official language of Québec, and enacted policies aimed to entrench it in everyday use as well as in governmental affairs. The consequence is that 94% of the province speak French, and all provincial parties (some more than others) are adamant about increasing this percentage. The increase of immigrants is a direct threat to this mandate because it would culturally diversify population, and Francophones may become a minority in their own province. With increasing immigration, a decreasing amount of the population have French as a mother tongue. This weakens allegiance to Quebec’s French origins. This is why one of the constitutional demands of Québec is to have control over immigration policies despite that power being in federal jurisdiction. Immigration has increased and will continue to, especially considering Prime Minister Justin Trudeau’s commitment to incoming refugees. A combination of French secularism and the sharp rise of discrimination against Muslims after 9/11, Québec nationalism has provided a strong base of support for Bill 62 at the cost of the liberty and equality of Muslim women who wear the niqab or burka.
The advent of Bill 62 is only a reiteration of the province’s assertion of Canada’s biculturalism. It emphasizes the French policy of laïcité over the Canadian multicultural policy.
Given the aforementioned historical context, Justin Trudeau’s sudden reluctance to criticize the bill is also not surprising. Québec electoral seats are crucial to capturing elections, and federal politicians are reticent to antagonize them. Québec’s relationship to the federal government has always been sensitive. It is the only province in Canada to have not officially signed the Constitution, although its acceptance of it is simply symbolic. When it came to negotiating the Constitution, Québec had specific demands (ones that Premier Philippe Couillard recently echoed) including the recognition of the province as a distinct society. When it became clear to Prime Minister Pierre Trudeau that they could not come to a compromise during constitutional discussions in 1981, he and the other premiers excluded Premier René Lévesque from the discussion that led to the drafting of the proposal that would be presented to the Queen. The moment has been dubbed in Québec as Nuit des Longs Couteaux, and provincial public opinion overwhelmingly supported Lévesque’s abrupt exit from the discussions. The failure of the Meech Lake and Charlottetown Accords further alienated the province, and they went on to hold a referendum on the question of separation from Canada. The referendum in 1995 held that 49.42% of Québec wanted to separate. This slim margin led to the passing of the Clarity Act, where the federal government placed restrictions on Québec’s right to unilaterally do so. Couillard’s government is aware of the unlikely chance that Justin Trudeau will actively denounce the Québec government on Bill 62 because of these historical tensions.
I suspect that a direct challenge to Bill 62 in the Supreme Court would only serve to inflame the tensions. Provincial elections for Québec are approaching, and Couillard’s Liberal Party must win against a separatist Parti Québécois. The previous PQ government talked frequently of holding a third referendum on separation, but did not follow through due to perceived lack of public support. However, if the federal government angers Québécois voters enough, sovereigntist parties may amass enough support to form government, where they will undoubtedly capitalize on the momentum to call a referendum. Since the Clarity Act has ruled that Québec may secede from Canada if voters reach a clear decision on a clear question of separation, a federal judicial challenge to Bill 62 may cause larger problems than intolerance since the sovereigntist movement in Québec is still alive.
However, these political tensions do not exclude a court challenge from within the province. A lawsuit has been launched by Muslim and civil rights groups, citing a violation of the Québec and Canadian Charter of Rights and Freedoms. The bill is undoubtedly unconstitutional, yet Premier Couillard asserts that the bill was crafted in respect to the Charter. PQ leader Jean-François Lisée said that he would invoke the Notwithstanding Clause if the bill was ruled against. The clause stated in Section 33 of the Canadian Charter was a concession by the federal government to provincial governments who thought they held too much power. Québec in particular was adamant about the inclusion of this power to override certain portions of the Charter for a period of five years. These portions include Section 2 Fundamental Freedoms, where the right to freedom of religion is stated. In the years following constitutional debates, Québec expressed its opposition to the Charter by invoking the Notwithstanding clause in every piece of legislation passed. It was also used in defending Bill 101 against the ruling that the bill violated freedom of expression. Although most policymakers will agree that it is always controversial to invoke Section 33, Quebec politicians are not as reticent to violate fundamental freedoms for nationalist goals.
A lawsuit has been launched by Muslim and civil rights groups, citing a violation of the Québec and Canadian Charter of Rights and Freedoms.
The passage of this bill is yet another assertion from Québec of its distinct society. When the banning of religious symbols was first brought up by the sovereigntist Parti Québécois in 2013, it was titled La Charte des valeurs québécoises. Among the proposed charter, women who wore face veils were barred from holding government jobs. The charter was rejected when the PQ was voted out of office, but Couillard’s Liberal party is facing re-election next year, and Bill 62 is meant to appease voters by enforcing “religious neutrality.” It is supposedly a moderate version, although the extension of the PQ’s policy to even the recipients of government services makes that claim arguable. The bill was voted against by all opposition parties in l’Assemblée nationale: the Coalition Avenir du Québec (CAQ) and the Parti Québécois did not think it was enough, and the left-wing Québec Solidaire (who only hold three seats) opposed it for its incoherence. Despite the opposition, they unanimously believe in a notion of religious neutrality because it reflects the values of Québec. It is not the content of the bill that the opposing parties are against, but the way it has been implemented.
[Couillard] carefully constructs a narrative in which those who do not wear the niqab or burka are considered human, while those who do wear them are considered alien. This sort of rhetoric is dangerous; it makes the alienated minority susceptible to inhumane treatment. Their dehumanization becomes state sanctioned. This language is the sort that increases anti-Muslim sentiment and violence.
It may be easy to say that Québec nationalism is racist, but a further examination of the political history leading up to the manifestations of laws like Bill 62 expose an intolerance to religious minorities and immigrants inherent in Québec nationalism. The problem of Québec nationalism is complex, and the solutions must also be nuanced, but there must be more to be done than the blatant alienation of a religious minority. The game of politics has interfered with the democratic processes put in place to prevent this sort of violation of individual liberties. The Charter of Rights and Freedoms protects fundamental freedoms like religious expression, and a failure to punish a government that disrespects these rights simply because of political tensions is a failure to protect liberty.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of the McGill Left Review's editorial board.