Montreal

New guidelines not enough to fix Quebec's face-covering ban, lawyer says

Muslim women wearing a niqab or burka still face uncertainty about access to public services

May 12, 2018

Warda Naili, left, seen here last November with her lawyer Catherine McKenzie, launched a legal challenge to Quebec's religious neutrality law. The guidelines for how the law should be enforced are set to go into effect July 1. (Ryan Remiorz/Canadian Press)

Quebec's new guidelines on religious accommodation have failed to ease concerns about whether Muslim women will be able to access public services — such as riding a bus — if they wear a niqab or burka. 

The guidelines were released earlier this week, and are meant to become part of a law that requires Quebecers to leave their faces uncovered in order to give or receive public services. 

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They state that exemptions to the law can only be granted on religious grounds if the demand is serious, doesn't violate the rights of others and doesn't impose "undue hardships."

But they also leave it up to individual public bodies to decide how to handle requests, and require each body to appoint an official to make these decisions.

That could require a woman wearing a niqab to make numerous requests in order to take care of simple everyday tasks, everything from getting a driver's licence to taking public transit to borrowing a library book, said Catherine McKenzie, a lawyer at the Montreal firm IMK.

"I don't see how this is going to work in practice," she said. "We're talking about something that is really burdensome on the people it affects."

Guidelines raise more questions

The province was forced to produce the accommodation guidelines when a Quebec Superior Court judge​ suspended parts of its religious neutrality law (previously known as Bill 62) last year.

Quebec Justice Minister Stéphanie Vallée responds to Opposition questions during question period, Wednesday, May 10, 2017 at the legislature in Quebec City. (Jacques Boissinot/Canadian Press)

McKenzie was part of the legal team that challenged the law's constitutionality on behalf of Warda Naili, a Quebec woman who wears a niqab. 

While the law did include the possibility of some exemptions to its ban on face coverings, a judge ruled these were too vague to address worries it would lead to violations of religious freedom.

The judge said he would lift the injunction if the government could provide more details about how the exemptions would work in practice. 

In releasing the updated guidelines this week, Justice Minister Stéphanie Vallée said they were "going to help a lot of people respond to requests because right now there is absolutely nothing." 

But for McKenzie, the new guidelines simply raise more questions.

She wants to know if accommodation requests will have to be decided within fixed timelines.

And secondly, whether people will be able to access a public service pending a decision from the providing body.

"Are they going to provide additional parameters to circumscribe this so people understand what process they have to follow and how it's going to affect them?" McKenzie asked. 

Catherine McKenzie, a Montreal lawyer, was part of the legal team that challenged the constitutionality of the face-covering law. (Catherine McKenzie)

The National Council of Canadian Muslims and the Canadian Civil Liberties Association also denounced the new guidelines, saying in a joint statement they would do nothing to "fix a law that is, at its core, discriminatory and unconstitutional."

"Requiring Muslim women who wear the niqab to make an application for exemption every time they wish to access basic public services such as health care and transit places a further undue burden on them," said Khalid Elgazzar, the vice-chair of the council.

"In our view, these guidelines only reinforce the convoluted and flawed nature of Bill 62." 

Details still to be worked out

Vallée told a Radio-Canada morning show on Thursday that the government would finalize details about how the guidelines will be implemented, including timelines, before they are to come into effect on July 1.  

McKenzie, though, is in the process of consulting with her clients about how to proceed. They could seek an extension to the stay. 

The guidelines released this week, she said, don't correct the more fundamental constitutional issues with the face-covering law. 

"There is a total ban on women who cover their faces for religious reasons," McKenzie said. "I don't think when you've got a ban this wide that any accommodation … could save this law [from constitutional challenges]."

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