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Bill 62: Could Ottawa really do anything about Quebec’s face-veil ban?

Zunera Ishaq, pictured in 2015, was at the centre of a case involving whether she could wear a niqab while taking her citizenship oath. Muslim women in Quebec are now facing new restrictions on where and when they can wear a similar veil.
Zunera Ishaq, pictured in 2015, was at the centre of a case involving whether she could wear a niqab while taking her citizenship oath. Muslim women in Quebec are now facing new restrictions on where and when they can wear a similar veil. CANADIAN PRESS/ Patrick Doyle

Prime Minister Justin Trudeau may not like it, but experts agree that he and his government have limited options when it comes to challenging a new law in Quebec that forbids people from giving or receiving government services with their faces covered.

Bill 62, passed by the province’s National Assembly on Wednesday, cannot simply be overturned by the federal government. It must be challenged in court, something that is expected to happen almost right away.

WATCH: What you need to know about the controversial law

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Quebec bans face coverings: What you need to know about the controversial law – Oct 19, 2017

What the federal government can do, however, is participate in court challenges, and potentially influence the speed at which they wind their way up from the provincial courts to the ultimate judicial authority — the Supreme Court of Canada.

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READ MORE: Quebec face-coverings ban leaves Muslims fearful

Getting to a final ruling on Bill 62’s constitutionality could take years if the case (or cases) follow a traditional path, he noted. But if the province of Quebec and the federal government can agree to questions that can be ruled upon right away by the Supreme Court, the whole process could unfold much faster.

The federal government, via cabinet, would need to submit what is called a “reference question” to the court, Behiels explained. The court, in turn, could expedite its ruling. The ruling is not legally binding, but no government has ever ignored one.

“References are used to try and get something through the court as expeditiously as possible,” Behiels said.

Recent reference questions include one regarding the constitutional validity of same-sex marriage in Canada in 2004 and one linked to possible Senate reforms in 2014.

‘It’s a question of respect’

While campaigning in Roberval on Thursday ahead of a federal byelection, Trudeau suggested that he personally doesn’t like Bill 62, but he stopped short of promising federal intervention on any level.

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Trudeau ‘respects’ Quebec for taking position on veil-ban but questions remain

Click to play video: 'Trudeau ‘respects’ Quebec for taking position on veil-ban but questions remain' Trudeau ‘respects’ Quebec for taking position on veil-ban but questions remain
Trudeau ‘respects’ Quebec for taking position on veil-ban but questions remain – Oct 19, 2017

“You cannot be a free society and say what women should wear or should not wear … It’s a question of respect for individual choice,” Trudeau said in French.

“It’s not up to the federal government to contest (the law). It’s up to citizens to contest.”

The prime minister would not say if he thought Bill 62 was unconstitutional. Asked if the federal government might consider financing a court challenge, he replied: “we’re not there yet.”

Canada is a federation, Trudeau added, and “the federal government must respect, or accept, that the provinces have the right to make their own laws. But as you know well, as a Liberal at the federal level, I believe profoundly in the Charter of Rights and Freedoms. I will always defend it and it applies to everyone in Canada.”

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READ MORE: Ontario attorney general says Quebec’s religious neutrality law violates charter rights

Behiels noted that Trudeau’s father, former prime minister Pierre Elliott Trudeau, faced a similar predicament in the 1970s when Quebec passed its provincial language law, Bill 101. He did not intervene and the court challenges ran their usual course.

“It took four or five years to get that to move forward, and that caused a lot of instability and bad blood. I think that was a mistake. I think he later regretted that.”

Quebec sparked heated criticism across the country Wednesday after it passed the controversial new legislation. Muslim organizations, civil rights groups and the province of Ontario have come out strongly against Bill 62.

The law bans the wearing of any face covering on people giving or receiving a service from the state, but it offers a framework outlining how authorities should grant accommodation requests based on religious beliefs.

Quebec Premier Philippe Couillard has defended the law by saying it is necessary for reasons related to communication, identification and security.

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