Is a ban on the niqab a Charter problem?

Quebec Premier Jean Charest made quite a splash last month when his government tabled Bill 94, legislation that would require anyone providing or receiving government services to do so with their face uncovered. (See coverage in the Globe, the Toronto Star, and the National Post.) The legislation takes direct aim at Muslim women who wear the niqab, also sometimes known as a burqa, and applies to all services received from the state. In addition to government offices, this includes services from hospitals, schools, universities, and daycare centres that receive provincial funding.

The issue of accommodating this particular style of dress (there is some debate as to whether it is a religious practice) has been simmering for a few years, particularly as it relates to voting. Elections Canada’s policy has been to allow women wearing the veil to vote without showing their face. When this came to light during a series of by-elections in 2007, all parties except the NDP urged the elections body to change its stance. A similar issue arose in Quebec’s 2007 provincial election.

Law professors did not wait long before predicting a court challenge to Bill 94, if it becomes law, and weighing its chances for success. This issue could have come right from the pages of a law school exam or moot competition, as  the wide array of issues and strong arguments on either side make it difficult to say with any certainty whether the law runs afoul of Supreme Court doctrines on freedom of religion and equality rights.

A framework for debate

It is easy to interpret Bill 94 as the government targeting a religious group, in this case Muslims, for differential treatment on the basis of a belief that the government happens to disagree with. That, in my view, is too simplistic. There is a contingent of people who see the practice as a symbol of the oppression of women; on that view, the state could be justified in banning the wearing of the niqab as a form of protecting women’s rights. On the other end is a civil liberties argument that says that the government should have no place in dictating what people may and may not wear. Clearly, there is also a freedom of religion argument as well.

Debates over cultural and religious practices often risk painting disparate groups with incredibly broad brushes.  On the issue of Bill 94 singling out “the Muslim community” for differential treatment, however, it’s worth noting that in the fall of 2009 the Muslim Canadian Congress asked the federal government to ban the burqa and the niqab.  The MCC suggests the wearing of the veil is rooted more in Middle Eastern culture than in religious teaching, and argues there is nothing in the Quran that requires women to cover their faces. Sheikh Muhammad Sayyid Tantawi, dean of the Al-Azhar schools in Egypt and one of that country’s top scholars on Islam, has made a similar point.  He argues the niqab “is a tradition and has nothing to do with Islam”, and has vowed to ban it in the Al-Azhar schools.

A final relevant fact involves numbers. The Muslim Council of Montreal (quoted in the Globe story linked to above) suggests that there may be as few as 25 people who don the full facial veil in Quebec. Similar estimates appeared in the other stories covering the issue.

Might the case succeed?
Whether any challenge would proceed or be successful on a s. 2(a) (freedom of religion) or s. 15(1) (discrimination) basis is an open question.  Neither case appears to lean strongly one way or the other.

In rebutting a challenge on freedom of religion grounds, the government could lead evidence, such as testimony from scholars such as Egypt’s Tantawi and statements from bodies like the Muslim Canadian Congress, suggesting that banning the niquab is not even a religious issue.  While interesting, on a s. 2(a) challenge such evidence would be beside the point. A majority of the Supreme Court in Syndicat Northcrest v. Amselem, 2004 SCC 47, held that conforming to any sort of widely held religious doctrine was unnecessary to ground a freedom of religion claim:

[A]t the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief.

Wearing the niqab surely meets this test, meaning that the protection of s. 2(a) would potentially be engaged. Accordingly, the critical question would be whether the proposed law infringes that s. 2(a) right.

The Court has held the government can legislate in a way that interferes with the ability of a person to act in accordance with his or her religious beliefs, if the interference is trivial or insubstantial. In determining whether that threshold is met, the majority in Amselem held that freedom of religion “may be made subject to overriding societal concerns.”

The government would then need to identify which overriding societal concerns make s. 2(a) inapplicable. At least in the context of the delivery of health care or other government services that require identification for reasons of security or fraud prevention, this would likely be a fairly straightforward burden to meet. Once an identification has been made in such a transaction, however, it becomes harder to justify the ban in the actual provision of the service. Concerning education, it’s at least arguable that a secular state should be able to impose standards on receiving a primary and secondary school education that conformed with societal views on the proper place of religion. Of course, this argument would be more tenable if the government banned all religious symbols from public schools, including crosses and kippas. Alternatively, it could be argued that the primary school context requires face-to-face communication and eye contact between pupils and teachers. Whether either of those arguments would be viable in a university or college context is the more difficult question.

On the s. 15(1) issue, the Court recently stated in R. v. Kapp, 2008 SCC 41, that a distinction violates s. 15(1) when it creates a disadvantage by perpetuating prejudice or stereotyping. On the first element (disadvantage) a court is to consider any pre-exisiting disadvantage, the ameliorative purpose or effect of the impugned legislation, and the nature and scope of the interest affected by the legislation. On the second element, the correspondence between the alleged discrimination and the claimant’s actual characteristics or circumstances is considered.

Does preventing a group from accessing government services because of its manner of dress perpetuate prejudice or stereotyping? It may, but that jumps ahead of the question of whether s. 15(1) is even applicable. Again, the answer goes back to whether the practice is religious or cultural. It’s not clear that the Amselem approach applies here; thus, the government may be able to legitimately lead evidence showing the practice of wearing a niqab is a cultural and not a religious exercise. If such evidence is accepted by a court, then the argument effectively becomes “the government is preventing me from exercising my own cultural practices.” Culture is not an enumerated ground in s. 15(1), and to my knowledge no court decision has suggested that it is an analogous ground. The Charter doesn’t necessarily protect cultural practices in the same way that it does religious ones; however, if that potential barrier is set aside, then a court would likely focus on the nature and scope of the interest affected by the legislation. Here, access to a vast number of government services is at stake. That, in and of itself, may be enough to support a discrimination finding.

Section 1

If the government fails on one or both Charter grounds, it could still justify the law under section 1. That involves demonstrating a pressing and substantial objective, a rational connection between the means chosen and the objective, and that the rights infringement is proportional to the law’s benefits. Daniel Haboucha over at McGill’s Legal Frontiers blog has canvassed the s. 1 issues, and concluded that the government would have difficulty meeting the last stage of the test.

The government may argue that part of the reason for enacting this legislation is to promote the integration of immigrants into Quebec society. The counterpoint is that, if a woman believes that her face must be covered whenever in the presence of unrelated men and a consequence of not respecting this requirement will be ostracization from her community, she may choose to simply stay at home. Wishing her children to respect the same beliefs, she may choose to send them to a religious private school instead of a public one. None of this is serving the cause of integration. (Indeed, this argument is supported by a recent report about a second woman who was expelled from French classes in Quebec)  Similarly, on the proportionality argument: if the numbers given by the Muslim Council of Montreal are accurate, is it really necessary to enact such a law to deal with 25 people in a way that applies only to those 25 people?

In any event, based on the Supreme Court’s approach to ss. 2(a) and 15(1), it’s neither a foregone conclusion that Bill 94 violates the Charter nor is the legislation definitively Charter-compliant. Of course, this is why these sorts of issues end up in our courts, and possibly in the Supreme Court. It does seem odd, though, that for all the rhetoric, time, and money that various parties are prepared to expend on the issue, the end result might simply be nine people in Ottawa deciding whether 25 people can access government services dressed as they wish. I’m all for a secular government, but if the Quebec legislature is trying to promote and protect the values of Quebec society, it may want to pursue other avenues to achieve its goal.