What’s wrong with banning the niqab?

Let’s start with the obvious: it violates the religious freedom of Muslim women who choose to wear the niqab for reasons of faith. Even those who would defend a ban, such as noted constitutional lawyer Julius Grey, acknowledge that this would violate religious freedoms – however, freedom of religion in Canada is never absolute, and the question is whether or not the government would be able to adequately justify such an infringement.

It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.

The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).

The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter stipulates that every person is fundamentally entitled to freedom of religion (which includes the right to manifest it, according to the Bouchard-Taylor Commission), subject to proper regard for democratic values, public order and the general well-being of the citizens of Quebec, and that every person shall exercise his rights without distinction based on sex or religion.

In both of these concurrent scenarios the case would likely reach the Supreme Court of Canada, which may find the law to be constitutionally invalid and strike it down. If it does, the Quebec legislature will have the option to re-enact the law notwithstanding the relevant charter provisions, though this would be an extremely politically-risky move.

The third avenue is to bring a complaint before the UN Human Rights Committee alleging a breach of the International Covenant on Civil and Political Rights, as an Ontario man did in 1999 to challenge constitutionally-sanctioned religious discrimination in school funding. The ICCPR stipulates that everyone shall have the right to freedom of thought, conscience, and religion including the right to manifest his belief, and that he shall not be subject to coercion that would impair his ability to have or adopt a belief of his choice, subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. A favourable ruling from the Human Rights Committee, while imposing a binding treaty obligation on Canada, would not be directly enforceable in domestic courts – though it too would generate strong political pressure.

Numerous arguments have been advanced in defense of Bill 94, of which I have encountered the following:

  1. The niqab precludes social integration and cohesion;
  2. The niqab promotes gender inequality;
  3. The niqab is not in fact required by Islam, most Muslims do not wear it, and many Islamic theologians oppose its use;
  4. The niqab is an archaic symbol of oppression that undermines the values of Quebec society;
  5. The niqab could be used as a cover for criminal or terrorist activity;
  6. The niqab poses a public security threat in situations where policy calls for one’s identity to be ascertained;
  7. Immigrants should adopt the values of the society they move to;
  8. We should not accommodate the practices of people from countries that do not accommodate ours.

That Quebec has a marked history of religious intolerance, and that many of these arguments may appear to be founded in anti-Muslim sentiment rather than in relevant law or public policy, provides a second, independent reason to be wary of attempts to ban the niqab. One should not ignore that this proposed legislation singles out Muslims and that it emerged within a social context noted for anti-Muslim sentiment, which in itself evokes memories of uglier periods in our history. Paul Waters, writing for the Montreal Gazette, likens the anti-niqab “bullying of outsiders to protect Quebec values” to the Duplessis-era persecution of Jehovah’s Witnesses.[1] In attempting to distinguish between legitimate opposition to the niqab and mere “bullying tactics”, I’ve identified six of the eight arguments above which I think should have absolutely no bearing on the discussion.

Argument #3 is irrelevant because the Supreme Court in Amselem affirmed that a religious practice is one that is sincerely, subjectively felt to be connected to the observance of one’s religion, regardless of whether or not the practice is universal, normative, or required by a religious authority.[2] It is not for the Canadian public, or the courts, or any given Islamic scholar to determine whether Muslim women are religiously-mandated to wear the niqab; it is for each Muslim woman to decide the extent of her obligation within the parameters of her faith.

Argument #4 is also irrelevant, because unless a religious practice infringes on someone else’s rights or freedoms the courts have no authority to pass judgment on it. Many Quebecers may subjectively perceive the niqab to be archaic and a symbol of oppression, but the same might be said of any religious practice. And regardless of what it symbolizes, as with all other religious practices, absent evidence of coercion we must presume that a woman who wears the niqab does so in free exercise of her personal autonomy.

Arguments #5 and #6 are merely diversionary. It is misleading to assert that security considerations form the basis of this legislation, and disingenuous to portray tolerance of the niqab and maintenance of habitual security practices as mutually exclusive. Accommodation will only exist to the extent that it is reasonable, as defined by the Supreme Court; it is clear, even absent specific legislation, that niqabis will have to show their faces for the purposes of obtaining ID cards, passing through security checks, etc., and there are no reported cases in Canada of niqabis refusing to do so. Nor are there documented cases of criminals disguising themselves in niqabs to avoid detection (which would hardly be inconspicuous). There is no indication that the bill is designed to, or that it would, improve Quebecers’ security.

Argument #7 is contrary to everything that is Canadian. The official policy of multiculturalism, adopted by the federal government close to 40 years ago, affirms that Canadians of all ethnic and national origins can simultaneously retain diverse cultural values and participate fully in Canadian society. Even declaring Quebec to be a “secular society” does nothing to change the entrenched legal norms of religious freedom.

Argument #8 is similarly un-Canadian; the Canadian Charter specifically prohibits allocating differential rights on the basis of national origin. Our judiciary does not punish individuals simply because we don’t like the laws of the countries they were born in.

If the government is called on to defend Bill 94 before a court or tribunal, I believe it will have to show either that the legislation is justified by the pressing policy objective of promoting social cohesion (argument #1) or that it is required to protect women’s equality rights, which are so important that they should be allowed to displace some religious freedoms (argument #2).

I believe that the second argument is likely to fail. For it to succeed would be to abruptly alter the understanding of religious freedom that has developed in Canada over the course of decades. Yes, for women to systematically don particular garb that men do not inherently suggests some element of gender inequality. But if the niqab violates the principle of gender equality, why wouldn’t the garb worn by religious Catholic and Jewish women? Why wouldn’t tube tops and miniskirts, for that matter? Despite the (ironically secular) Muslim Canadian Congress’ position that the practice of wearing the niqab marginalizes women,[3] I think the right to wear religious garb must be protected in any society that values freedom of religion. Some argue that the niqab inherently oppresses women because no reasonable person would freely choose to wear it, but we should be extremely wary about such a descent into paternalism when the stakes are as high of depriving people of fundamental freedoms. I don’t think wearing any sexually-differentiated religious attire, no matter how alien or uncomfortable, should give rise to an automatic presumption of male oppression; such a determination should only be made on a case-by-case basis. Moreover, it may be difficult to make the case that a law which singles out Muslim women in its application advances the cause of equality.

The first argument, in my opinion, has a slightly higher chance of success. According to the Oakes Test, the government would first have to show that it is acting to advance a particular pressing and substantial policy objective. I think that promoting social cohesion and integration would qualify as such an objective.

The government would then have to show that the means by which it is advancing this objective are proportional to their goal. This consists of three elements:

The government would have to show that the means are rationally connected to the objective. I believe it could meet this requirement. The full, physical separation the niqab entails promotes a reasonable apprehension among many Muslims and non-Muslims alike that wearing it precludes women from integrating into society, and that it acts as a barrier to communication which inhibits normal interaction. Many people feel intimidated or uncomfortable at the sight of the niqab, more so than other forms of religious garb, because of a fear of the unknown. Not being able to see one’s interlocutor in face-to-face encounters can be highly disconcerting, and Grey describes the niqab as “ghetto walls that a person wears” that make social participation impossible.[4] Conversely, a possible counterargument might be that it is anti-Muslim sentiment and not the niqab that is the greater threat to social cohesion, and passing a law rooted (or perceived to be rooted) in such sentiment would only push this objective further away. History has shown generally that it is the expansion, rather than the curtailment, of religious freedoms which most effectively promotes social integration. Another possible counterargument might be that the government has no authority to demand that citizens behave “sociably”.

The government would then have to show that Bill 94 infringes religious rights to the minimum extent necessary to advance its objective. This will be somewhat more difficult. If the government succeeds, in the previous step, in establishing that the niqab inherently inhibits social cohesion, than it would be reasonable to argue that banning the niqab from some public forums constitutes minimal impairment. However, it might be argued that banning the niqab from hospitals and schools goes further than necessary, and that since everyone requires access to healthcare and education (perhaps more so than other government-funded services), less coercive measures could be found to discourage the practice of wearing it. Denying medical treatment to those who would refuse to remove something essential to their religious identity seems to me extremely heavy-handed.

Lastly, the government would have to show that there is proportionality between the infringement of religious freedom and the objective being pursued. This is where I think the government’s case would most likely fall. Does the benefit of having a society which might be slightly more cohesive due to a reduced usage of the niqab outweigh the harm that would be inflicted on the small number of Muslim women who would otherwise wear it? I would argue that it does not. Any benefit that might result would be intangible and difficult to demonstrate, while the harm would be much more plainly evident. Aside from the curtailment of fundamental individual freedoms, it would send a distinct message of intolerance to and about Quebec society that could further erode constitutional protections.

Is Bill 94 targeted at the niqab, or at niqabis? Does it send the message that nobody in Quebec has the right to wear this particular religious garment? Or does it send the message that certain religious Muslim women in Quebec do not have the right to government services, healthcare, and education (which itself promotes religious and gender inequality)? Because religious freedom is so heavily entrenched in Canada, it seems to me that the two are heavily intertwined and the resulting message is ambiguous. Unless the Quebec government can disentangle the messages, and show that has an insurmountable problem with the niqab but not with those Muslim women who would wear it (and I don’t think it will be easy to show why a neutral piece of cloth is so much more repugnant to public order than, for example, the black hats worn by Hassidic Jews or the habits worn by Catholic nuns), I think its attempts to ban the niqab will fail.

Moreover, one of the driving forces behind Bill 94 is the desire to show that Quebec society is not like Iranian or Saudi societies, where women are forced to dress in certain ways. While those societies are oppressive, ours is open and protects individual rights, or so the argument goes. But I fail to see why a government that bars a particular form of dress is inherently any less oppressive than one which demands it. I think that for a government to ban certain forms of religious dress it should have to satisfy an extraordinarily high burden of proof to establish why such dress is harmful to society.

In sum, as things are now I don’t think that Bill 94 will be able to withstand legal scrutiny. While I do share some of the concerns many have expressed regarding the niqab’s potential to inhibit social cohesion, I am not entirely sure that it is categorically different from many other forms of religious practice in that regard. I tend to be less worried about the direct effects of Bill 94 than I am about the underlying societal realities it reflects. If Bill 94 is defeated, I have little doubt that the government will pursue other, less coercive, mechanisms for discouraging the wearing of the niqab and promoting a more secular, egalitarian form of Quebec identity.

To conclude, and to bring some international perspective to this analysis, it is worthwhile to consider the effects of similar laws enacted elsewhere. Turkey and Tunisia both ban the niqab from public institutions. Belgium and the Netherlands are considering similar proposals. France too has gone much further than Quebec in trying to eliminate religion from public life, banning all religious symbols from public schools and institutions. Such measures are based in what Grey calls “dogmatic secular radicalism”, and considerable jurisprudence shows the extent to which French constitutional values differ from Canadian ones. Nevertheless, despite much international criticism from human rights bodies, France’s secularism law has not been successfully challenged either under the ICCPR or the European Convention on Human Rights. One possible distinction between the French law and Bill 94, despite their similar purposes and ostensible neutrality, is that while the former primarily affected Muslim women, its effects were felt by every religious community in the same way; in contrast, the effects of the latter will be borne exclusively by Muslim women. As Canada’s Supreme Court noted in a landmark religious freedom case,[5] a law’s effects as well as its purpose can serve as the basis for a constitutional challenge.

[1] http://www.montrealgazette.com/life/Niqab+harkens+back+dark+days+Duplessis/2750783/story.html

[2] Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Amselem) at para. 46. http://www.canlii.org/en/ca/scc/doc/2004/2004scc47/2004scc47.html

[3] http://www.thestar.com/living/religion/article/715872—people-think-you-re-oppressed-if-you-wear-the-niqab

[4] http://www.vancouversun.com/life/Most+Canadians+agree+with+bill+banning+burka+Poll/2727130/story.html

[5] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

Daniel Haboucha Daniel Haboucha is a fourth-year law student at McGill, with interests in international humanitarian and human rights law. A native Montrealer, Daniel completed his undergraduate degree in McGill’s integrated Arts and Science program while serving as a reserve infantry soldier in the Canadian Forces.

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9 Responses to “What’s wrong with banning the niqab?”

  1. Salma says:

    Thanks for the clear and concise essay on the legal hurdles here. Very well-written. I believe the fact patterns in this second case make it even harder to argue argument #1:

  2. SR says:

    Excellent analysis.

  3. Padraic says:

    Great piece, provides some of the thorough analysis that is badly needed. I would add that if medical treatment is going to be withheld from women wearing the niqab, section 7 is probably triggered as well.

  4. Andrea says:

    I agree; excellent analysis.

  5. Avichail says:

    Very well written article. I would just like to add that another danger of Bill 94 is that it might not just stop with the niqab. It risks creating a trend in Quebec society that would lead the government to pass more laws in the future limiting religious symbols in public life, not only for a small minority of Muslims women, but for all people in Quebec who visibly express themselves in religious or cultural garb.

  6. Lillburne says:

    Although I agree with the assessments of the prior commentators as to the excellent analysis of the article, I feel that you have oversimplified the issue. The hard case is not whether Quebec has the right to generally ban the Niqab, which as you have pointed out, it certainly does not, but on what limitations the provincial government can place on those who are wearing them. For example, would someone who wears the Niqab be entitled to drive a car, if the Niqab demonstrably impairs her vision (quite a big if), or how far would the Quebec government have to go to accomadate Niqab wearers when providing them with governmanet services. Would the Quebec government have to provide an on-call woman nurse and doctor to deal with those who woman who refused to see a male nurse or doctor? As an American law student I was wondering how Canada would deal with this connundrum.

  7. I. Hall says:

    I agree with the analysis here. Except that, for the precise reasons you suggested, I doubt this will pass the rational connection stage.

    But I think the government might also try to argue that since the law requires that an accommodation be denied only if it “involves an adaptation of [the face covering ban] and reasons of security, communication or identification warrant it.”

    That would be a sort of built-in Section 1 test. Of course, the provision might still be a violation of Section 15(1) since it appears to target Muslim women in particular. Failing that, many individual instances of it being applied might be struck down as violations of Section 2(b), without the provision itself being struck down. The courts might instruct that the provision be read in a way compatible with the Charter and then give guidance on that.

  8. Philip Duguay says:

    I wish the Canadian media gave as serious a level of analysis to this issue as you have, Daniel. What’s next, banning toques with ear flaps and balaclavas? The ski-dooing people of Québec should be wary. What happens in other countries should not affect Canada. I don’t want a French tax regime, a French labour regime, or a French social system, in Québec, British Columbia or Nunavut. I want Canada to come up with its own solutions — and furthermore, I still do not understand exactly what the ‘problem’ is to begin with? I have lived in a few urban centres in Canada, I have interacted with a lot with Muslim Canadians, and I just do not understand what pressing social burden is placed on Canadians by a woman choosing to wear a niqab. This whole situation is a side-issue, a diversion created by the press and the government during a time when the environment, our energy supplies, our health care and education systems need some serious attention. Well done, Daniel.

  9. Safi says:

    Dr. Beverley Baines from Queen’s University (cross appointed to law and gender studies) wrote a challenge to Bill 94 on the basis upon which it is posited — that is, sex equality. Indeed, she argues, the matter can be adjudicated against using the very reasoning & mechanism by which it is employed. It’s rather brilliant and has much cross-over with your own analysis!



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