What Critics of Quebec’s Ban on Face Coverings Get Wrong

Last October, the Quebec National Assembly passed Bill 62 in an effort to settle the question of the religious neutrality of the Quebec state. This is often referred to in French as “laïcisation,” and is the completion of a long process through which Quebec public institutions entered the modern world. This process began with the Quiet Revolution of the the 1960s and continued with the replacement of religious school boards by secular ones and the secularization of health-care institutions. The law was understood in this context, and consequently well received, in the French-language media, but was decried in the English-language media as discriminatory against Muslims. Critics asked how a law enforcing religious neutrality was compatible with keeping a Christian cross in the National Assembly.

The new religious neutrality law requires all services requested or delivered by public institutions in Quebec be done with”face uncovered”; France and Belgium have more all-embracing laws in this regard. The law was passed nearly unanimously by the Quebec National Assembly, following a debate on religious neutrality within the governing Liberal Party and subsequently in the National Assembly that lasted more than a year.

Nineteen days after receiving Royal Assent, the new law was challenged in Quebec Superior Court on grounds that it is discriminatory (presumably against niqab-wearing Muslims) under the terms of the Quebec and Canadian charters of rights and freedoms.

Given the near-unanimous support for the law in the National Assembly, reaction was intense. Quebec Justice Minister Stéphanie Vallée, the minister responsible for the law, announced that she would invoke the notwithstanding clause in the Canadian Charter if the Superior Court appeal succeeded. For her part, federal Justice Minister Jody Wilson-Raybould announced that she was determined to study the law to ensure that the rights of Canadian citizens are protected.

The National Council of Canadian Muslims and the Canadian Civil Liberties Association announced that they would support the court challenge. Their legal brief, deposited shortly afterwards, was favourably received by Quebec Superior Court, which ruled that the law in its current form is discriminatory against members of a religion. However, the court delayed its final verdict until the regulations accompanying the law are proclaimed, which, as of this writing, has not taken place. The ruling Liberals may wish to avoid this becoming an issue in the Quebec election scheduled for October 1.

Freedom, Responsibility and the Uncovered Face

I contend that opponents of the religious neutrality law are addressing the wrong issue. It is not a matter of the law being discriminatory. It is whether our society continues to adhere to the basic precepts of Western civilization. Hence, the question should be: “Is concealing one’s face in public intercourse acceptable in a Western society?” When the question is posed in this way, the clear answer is no. Let me explain.

Our Greco-Roman and Judeo-Christian civilization accords us a great deal of individual liberty. Most of us are not aware of the extent of these liberties until we find ourselves in a society that does not recognize them – for instance, the liberty to leave our country, a liberty that did not exist in the Communist bloc and is still lacking in contemporary China. With these individual liberties come reciprocal responsibilities: the right to a trial by a jury of our peers, for example, assumes the duty to serve on a jury if summoned. Our individual liberties are the freedom side of equivalent individual responsibilities; the responsibilities are the direct complement of our liberties.

To be individually responsible toward others we must be identifiable. The most elementary part of our identity is our face. We look at one another face to face; we look one another in the eyes. It is how we take the measure of one another. Once we reach adulthood our character is written in our face. We judge whether we should have confidence in the individual before us by his or her face. We use facial expressions to communicate with our peers; they are a more fundamental means of communication than the spoken word. A grimace, a frown, but especially a smile are elementary means of telling our story in civil society.

Refusing to present ourselves face to face before other members of our society is a violation of the reciprocity that comes with our liberty. It makes individual accountability impossible. Covering one’s face in public is simply not acceptable in Western society, even if it is acceptable in some non-Western, particularly Islamic, societies. (It is worth noting that Islamic practices emerged in the middle of the seventh century, much later than Western European society.)

The expectation that women cover their face reflects women’s lack of liberty. Defenders of the practice claim women cover their face as a choice expressing their religious beliefs. Opponents point to the effect of social pressure. This is not the real issue. It comes down to the fact that, in our society, freedom does not and cannot mean the right to withdraw from our responsibilities.

Gary Caldwell’s article was posted to the Inroads listserv, with an invitation to listserv recipients to respond. What follows is an edited selection of the responses.

From: Garth Stevenson | March 20

Gary Caldwell’s editorial is entirely sane and reasonable. I fully agree with him. Not all Muslims support face coverings – just a small extremist sect based in Saudi Arabia. If they think face covering is such a good idea, why do they only require women to do it, and not men? Obviously because they want to keep women in a subordinate position where they cannot participate fully in society or interact normally with other people.

The fact that the Canadian Civil Liberties Association supports the challenge to the law doesn’t surprise me at all. Those people never saw a court, a judge or a lawyer that they didn’t like. That is why I stopped donating money to them several years ago.

I hope Quebec does use the notwithstanding clause and I hope this encourages other provinces to do so in relation to this and other issues. The taboo against invoking this clause, which was put in the Charter for good reason, is totally absurd.

From: Pierre Joncas | March 20

Without reservation, I agree with both Gary and Garth. One further observation: The notwithstanding clause was included in the Charter in 1982 at the firm and unwavering insistence of the premiers of the prairie provinces, Sterling Lyon (Manitoba, PC), Allan Blakeney (Saskatchewan, NDP) and Peter Lougheed (Alberta, PC), on the grounds of preserving parliamentary sovereignty, most sensible grounds in my judgement. Their agreement was essential to Westminster’s acceptance of the Constitution Act. Prime Minister Pierre Trudeau would not have paid the slightest attention to anything Premier René Lévesque might have requested.

From: Russil Wvong | March 20

Gary Caldwell writes, “To be individually responsible toward others we must be identifiable. The most elementary part of our identity is our face. We look at one another face to face; we look one another in the eyes. It is how we take the measure of one another.” I would suggest that this is overstating the point. A great deal of everyday social interaction is now carried on by telephone and by social media. In both of these cases we can’t see the other person’s face. I have no idea what Gary Caldwell looks like.

There are nonreligious reasons for wearing face-concealing clothing. For example, I wear a balaclava when biking in cold weather. A more ubiquitous example would be sunglasses. Requiring people to remove sunglasses when entering a bank seems reasonable. Similarly, requiring people to show their face when it’s important to prove their identity seems reasonable. Requiring people to show their face whenever they’re in public, or (in the case of Bill 62) whenever they’re dealing with public services, doesn’t seem that reasonable to me.

From: Reg Whitaker | March 21

I have long been perplexed, not to say confused, by the passion devoted to this issue of face coverings. My first inclination was to shrug that it is much ado about nothing, or very little, but this clearly fails to account for the enduring level of commitment shown by so many to achieving a symbolic victory in law. If this is about cultural hegemony, emotion will trump reason, which perhaps explains the attraction of this issue to political parties in the 2015 election: gaining exclusive ownership of a hot-button issue can pay off in the heat of a campaign (or explode in your face as happened to the Harper Conservatives).

The struggle for cultural hegemony is a peculiarly asymmetrical process in a pluralist society like Canada. The claim by those who seek to ban face coverings is that the Muslim minority – or more precisely the minority within the Muslim minority – is seeking a symbolic victory that will challenge the very basis of the majority culture. But in fact, Muslims’ assertion of the right to wear a face covering is no more than a classic claim within the pluralist, multicultural frame – I want to be left alone to express my personal minority preference without making any demand on anyone else to change their preferences. The opposing claim is quite different: the minority must submit to the preferred pattern for public face presentation of the majority. Only one side seeks hegemony, while the other just wants a pluralist limitation on majoritarian uniformity.

I would not suggest that there are never grounds in a pluralist democracy for insisting on submission to common standards of conduct. Of course, so-called honour killings and female genital mutilation are utterly unacceptable. But they are already illegal under Canadian law. So the Tory “barbaric cultural practices” screed was just partisan demagoguery. The question in this case is, or should be: Is there a compelling public policy requirement for an extraordinary ban on the particular practice of face covering? What is the harm caused by a covered face in a public place (in the Quebec case, even entering a public bus) that would necessitate a legal ban, and a criminal offence for anyone resisting the ban?

Here is where I just don’t get it. I can’t see the harm – especially when it is already enacted in law and regulation that when facial recognition is required for a particular public purpose (like granting a driving licence, providing citizenship or issuing a passport) it is enforced.

Pushing a ban on face covering into more banal everyday public situations can only be explained by something other than the motive of enforcing good public policy. Fear of the Other? Islamophobia? Or just a desire to assert that “we” are still on top and don’t intend to let these upstarts in?

Culture wars are all about symbolism, but victory in cultural wars can have serious material consequences, which is perhaps why they are fought so desperately. The consequences of victory are, however, very unequal. We have seen the worst of majoritarianism: a young anti-Muslim zealot gunning down people in a bloodbath just for praying in a Quebec mosque. What is the worst of minoritarian victory? The odd woman boarding a bus in a niqab!

I still don’t get it.

From: Pierre Joncas | March 21

If, for others, the ban against covering one’s face is about cultural hegemony, for me it’s about verifying identity when it is called for, and about security.

Identity first. A government agent ought to know, without a doubt, that the person requesting a service is who she (he) claims to be. A person who comes to vote ought to be unmistakably identified by all at a polling station: his or her face must be visible. In Quebec in the Duplessis years, and perhaps elsewhere at other times, there was a widespread practice of voter substitution called “the telegraph.” To foreclose any recurrence this of this or similar fraudulent practices, I’d insist on allowing voting in person, exclusively, in all elections, including candidate selection and, even more, election of party leaders. Who knows who is dialing the telephone or emailing from the keyboard? The issue isn’t cultural hegemony – it’s the integrity of the electoral process.

Security next. Putting aside public institutions for the moment, what bank branch manager or teller would feel comfortable seeing a face-concealed, burqa-clad client approaching a wicket? Why should a bus driver feel any more at ease, given how many have been attacked, at least here in Montreal? Nowadays, more and more buses are camera-equipped for reasons of safety, to identify vandals. A great deal of use the tapes would be to identify and track down a burqa-clad bully, more likely to be male than female.

There is, of course, the issue of respect for the mores and habits of a host culture. That’s a separate issue and I’m not persuaded dealing with it through legislation would be effective. But if the Prime Minister of Canada and his family see fit to wear local attire in India, is it unreasonable to expect people of lesser social status who have settled in Canada to conform to our far from constraining Canadian dress customs out of courtesy? Or might Mr. Trudeau and Ms. Grégoire have been electioneering abroad to attract Canadian voters of Indian ancestry in 2019?

From: Henry Milner | March 22

Reg (like Russil) argues that women hiding their face in public is like their wearing ethnic costumes – harmless and, indeed, an expression of multiculturalism. He cannot see any possible public policy justification for repressing this “personal minority preference.” In my view, Gary sets out a convincing public policy justification tied to citizen responsibility for why this minority practice should be treated differently, and Pierre adds the security dimension. I want to stress another dimension, one that Garth mentions.

Note that the husbands, fathers and grown-up sons of these women could not imagine hiding their faces. Whether women who cover their faces are motivated by piety or are succumbing to social pressure, the fact that it is only women who do so sends a clear message. As such it constitutes a rejection of our values, not only those noted by Gary, but also that of gender equality: a woman’s face is not fit to be seen in public.

Bill 62 simply spells this out. It is unlikely that it will actually have to be enforced. It is not unusual and can be good public policy to spell out an expectation tied to citizenship that we know is almost never going to have to be enforced with sanctions (e.g. the obligation to vote in Australia or Belgium or elsewhere) simply to send a clear message.

From: Reg Whitaker | March 24

In the discussion about face coverings, I have the strong impression of entrenched views that will not change. But let me try to suggest at least some nuance in the argument.

Few if any Westerners “like” to encounter people who cover their face. I get that. I don’t like it either. There is obviously a deep cultural root to that aversion.

But I am not comfortable with just going with that aversion – and that cultural bias, if you like – when it is a question of people from different cultures presenting themselves as immigrants to what claims to be a multicultural, plural society. After all, we – I speak of liberal, progressive Canadians – are rather proud of how we overcame earlier biases and barriers that once designated minority cultures as “other” and threatening. Once, for example, we did not grant minority religious adherents the right to get off work on “their” religious observance holidays. Now we do, more or less.

Granted that face covering is a minority strain within the Islamic minority. But surely when we reach for legislative bans and criminal sanctions against this difference we also send a message to the larger Islamic community that is distinctly coercive and intolerant. Why do we need to make such a fuss that has such negative repercussions when the problems posed are really not that great in the larger scheme of things?

From: Pierre Joncas | March 25

Gary writes, “Critics asked how a law enforcing religious neutrality was compatible with keeping a Christian cross in the National Assembly.” I’m on the side of the critics. I have seen convincing documentation that it was installed there for religious reasons in the early years of the first Duplessis administration (1936 or 1937 if memory serves), probably to consolidate the vote of naive, susceptible Catholics. It is an insult to any conscientious citizen, believer as well as nonbeliever, who resists his conscience being manipulated to secure his vote (his vote: women were only granted the franchise in the 1940s under the enlightened Godbout administration). A few years ago, Quebec’s Catholic bishops indicated they didn’t object to the crucifix’s removal. Some who support its retention contend that it is an important element of Quebec’s cultural heritage. Given the circumstances of its installation, this contention is preposterous

“There are nonreligious reasons for wearing face-concealing clothing. For example, I wear a balaclava when biking in cold weather.” So writes Russil Wvong. Of course, the proposed legislation would not forbid him, or anyone else, to do so.

Reg writes, “We have seen the worst of majoritarianism: a young anti-Muslim zealot gunning down people in a bloodbath just for praying in a Quebec mosque. What is the worst of minoritarian victory? The odd woman boarding a bus in a niqab!” Majoritarianism? Leaders of all political parties and religious denominations (Christian and Jewish as well as Muslim) vigorously condemned the attack by Alexandre Bissonnette on a Quebec City mosque in which half a dozen Muslims were slain and others severely wounded. Majoritarianism? Seriously? I’m unaware of anyone in Quebec – even the fiercest among the laïcistes – approving this terrorist slaughter.

Reg also writes, “After all, we – I speak of liberal, progressive Canadians – are rather proud of how we overcame earlier biases and barriers that once designated minority cultures as ‘other’ and threatening.” While “cultures” may not be threatening, certain associated forms of behaviour can be: in a bus, a face-covering burqa or niqab is. One ought not to confuse liberalism and libertarianism. Is the determination by Quebec’s National Assembly, alone among provincial legislatures, to establish a Quebec long-gun registry illiberal? Is the abolition, under the Harper administration, of the federal registry liberal? Libertarian perhaps, liberal I think not.

The main point of Gary’s guest editorial, if I have understood it correctly, is to stress that freedom must be balanced by responsibility, a notion apparently widely ignored. He reminds readers of its paramount importance. I agree with him, as I do with former Supreme Court Justice Ian Binnie, who wrote in his dissent from the majority in Syndicat Northcrest v. Amselem ((2004) SCC 47), “There is a vast difference, it seems to me, between using freedom of religion as a shield against interference with religious freedoms by the State and as a sword.”

From: Reg Whitaker | March 27

In response to Pierre:

(1) Characterizing the Quebec mosque shootings as the worst of majoritarianism was hardly accusing Quebec leaders of being complicit in terrorist atrocities. Nor have I ever indulged in the “Quebecers are more racist than English Canadians” nonsense one sometimes hears. My point is that when the highest authorities in the land see fit to designate a particular minority as requiring regulation of its dress or appearance, it gives licence to the violent extremists who claim to act for the majority – just as the KKK and the lynchers in the South took heart from official segregation. On the other side, what would be the worst that would follow the legal recognition of the right of the tiny minority of Muslim women who wear a niqab to appear in public? Non-Muslims forced to convert to Islam? Shari‘a made supreme over criminal and civil codes? None of the above. The worst would be the 0.0001 per cent who wear niqabs boarding the odd bus.

(2) Pierre says freedom must be balanced with responsibility. Absolutely. Always. Just as rights always involve obligations. And yes, this is often forgotten in current debates. And minorities have rights but also responsibilities to the majority society – for example, to learn English and/or French even as they maintain their own language. To claim the right to be governed by shari‘a in Canada would be to deny a necessary responsibility to respect the law of the adopted country. But it seems to me at least that banning someone’s minority preference for religious garb is to deny to a particular minority the freedom of expression that is accorded the majority, not to speak of other minorities. Especially when the material – as opposed to alleged symbolic – harm to the public is negligible.

In short, I think not banning the niqab is precisely the right balancing of freedom and responsibility, while the Quebec law represents an imbalance and an overreaction.

From: Pierre Joncas | March 27

My problem with Bill 62 is that it is to be enacted on the grounds of religious neutrality. I think that the prohibition of face coverings under clearly and carefully defined circumstances ought be enacted where it can be justified on grounds of safety and identification. Religious beliefs are an intimate personal matter; they ought to remain so and not be a subject of law or regulation. Religious practices in public are a different matter altogether: they may (and should) be prohibited, but only after careful examination if, and only if, they imperil peace and public order.

Wearing a headscarf, a skullcap, a roman collar, all signs of religious belonging, neither conceals one’s identity nor constitutes a threat to security. Wearing a balaclava, not a sign of religious belonging, conceals one’s identity and, under some circumstances, can be a threat – in a bank it would give rise to instant suspicion, but not on a bicycle on a cold day. A mascot’s face-covering costume on a baseball diamond is innocent, but in a protest mob marching down a commercial street, it might be seen as a cover to hide the identity of someone committing an act of vandalism.

I’m far from an enthusiastic supporter of the current Quebec government. That said, I fully agree with the thrust of Gary’s guest editorial. Smacking of secular fundamentalism, the title of Bill 62 is, at best, tactless, and the way in which the government has handled it so far is extremely clumsy. All the same, there are sound grounds, other than religious neutrality, for the prohibition of face coverings under clearly and carefully defined circumstances.

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