To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such violations that occurred outside their borders.

The ICC has many shortcomings, including the inability to exercise territorial jurisdiction in states which have not ratified the Rome Statute. This conceptually precludes the court from being truly “universal”, but it is a difficult obstacle to surmount due to the primacy of sovereign equality in our international legal order. Far more practical to address are the legislative measures taken by individual states with regard to universal jurisdiction, and the discrepancies between states’ pronouncements on the topic and their concrete actions.

By way of example, Canada prides itself on being the “first country to [have incorporated] the obligations of the Rome Statute into its national laws” through the Crimes Against Humanity and War Crimes Act of 2000.[3] This far-reaching piece of legislation actually goes beyond the scope of the Rome Statute in many respects, for example by incorporating elements of universal jurisdiction and retroactive applicability. Yet, despite having had numerous occasions to prosecute individuals for war crimes over the last decade – authorities just recently published the names of 30 alleged war criminals living in Canada[4] – only two prosecutions under the Act have been initiated.[5]

In a prominent ongoing case, accused Serbian war criminal Branko Rogan faces revocation of his Canadian citizenship and deportation rather than a trial,[6] even though the ostensible purpose of the Act is to enable war criminals to be brought to trial in Canada. Jillian Siskind, the president of Canadian Lawyers for International Human Rights, notes that Canada’s preference for deporting accused war criminals rather than prosecuting them means that such people will usually never face trial due to a lack of will or capacity in their home countries, and may in some cases face the risk of torture.[7] The reason war crimes cases are rarely tried domestically in Canada can be found in art. 9(3) of the Act, which requires “the personal consent in writing of the Attorney General or Deputy Attorney General” for a prosecution to commence. This requirement makes the process inherently political. War crimes trials are expensive and often politically inexpedient;[8] but should political expedience trump the pursuit of justice? Amnesty International argues that it should not. The organization is one of several to have presented credible arguments in favour of indicting George W. Bush for war crimes on his recent visit to Canada.[9] Regardless of its judicial merit, it is difficult to imagine many Canadian politicians – much less a Conservative cabinet member – signing off on such a move (and no less difficult to imagine a former US president standing trial in his own country on such charges).

Many countries which recognize the principle of universal jurisdiction impose political constraints similar to Canada’s on its invocation. During the 1990s, a number of European states implemented extremely broad legislation asserting universal jurisdiction over a wide range of crimes, while the subsequent decade saw these measures drastically scaled back.[10] The UK, which asserted universal jurisdiction over certain war crimes as early as 1988, recently amended its procedure to require applicants seeking an arrest warrant for such crimes to gain approval from the director of public prosecutions (a political appointee). This reform came in the wake of repeated attempts to indict Israeli military and political leaders in British courts, which the government deemed harmful to its foreign policy interests.[11]

Universal jurisdiction is even more politically constrained in the United States: expansive anti-terrorism statutes have allowed US courts to exercise universal jurisdiction over crimes committed by the governments of North Korea and Iran, but the same courts declined to pass judgment on alleged crimes committed by US-ally Israel in deference to the executive branch.[12]

Although the US, UK, and Israel have all invoked universal jurisdiction domestically,[13] it is perhaps a striking illustration of power politics that despite their high levels of belligerency nationals of those countries have never faced prosecution before foreign or international tribunals for war crimes. The US and Israel in particular have taken aggressive legislative and diplomatic measures to prevent the doctrine from being applied against their citizens.[14]

While recognizing that the efficient conduct of international relations likely necessitates some sort of barrier (along the lines of diplomatic immunity) to prevent citizens from spuriously enmeshing foreign officials in legal proceedings, serious reforms should be advocated to depoliticize international criminal law and thereby bolster its credibility. Legal norms for invoking universal jurisdiction should be standardized across states, and barriers to initiating proceedings should be strictly judicial in nature rather than overtly political. Measures such as these would restore faith in international law by further advancing the positive trend toward individual accountability while at the same time clearly conveying the message that the same standards apply to the powerful and weak alike.

[2] Ibid. at 3.

[3] Canada’s Crimes Against Humanity and War Crimes Act, Implementing the Rome Statute (Retrieved 24 October 2011), online: Foreign Affairs and International Trade Canada <http://www.international.gc.ca/court-cour/war-crimes-guerres.aspx?lang=eng&view=d>.

[4] Paola Loriggio, “Feds Ask for Public’s Help to Catch Alleged War Criminals in Canada Illegally” 680 News Radio (22 July 2011), online: 680news.com < http://www.680news.com/news/national/article/256714–feds-ask-for-public-s-help-to-catch-alleged-war-criminals-in-canada-illegally>.

[5] Successes, War Crimes (Retrieved 24 October 2011), online: Department of Justice Canada <http://www.justice.gc.ca/warcrimes-crimesdeguerre/successes-realisations-eng.asp>.

[6] Adrian Humphreys, “The Cost of Being Stripped of Citizenship” National Post (10 October 2011), online: nationalpost.com <http://news.nationalpost.com/2011/10/10/the-cost-of-being-stripped-of-citizenship/>.

[7] Catherine Solym, “A Presumption of Guilt” Montreal Gazette (26 November 2011), p. B1.

[8] The only war crimes trial to have been successfully concluded in Canada to date, that of Desire Munyaneza, cost an estimated $4 million.

[9] Olivia Ward, “Canada Urged to Arrest George W. Bush on B.C. Visit” Toronto Star (13 October 2011), online: thestar.com <http://www.thestar.com/news/article/1069594>.

[10] See e.g. “European States Confronted with Impunity: Report on Universal Jurisdiction in Europe” (Alkarama, 2010), online: scribd.com < http://www.scribd.com/doc/30232948/Report-on-Universal-Jurisdiction-April-2010-Alkarama>. Representative of this trend, Belgium for example implemented some of the most far-reaching legislation in 1993 but effectively repealed it 10 years later.

[11] Universal Jurisdiction, Ministry of Justice Press Release (15 September 2011), online: UK Ministry of Justice <http://www.justice.gov.uk/news/press-releases/moj/pressrelease150911a.htm>.

[12] Daniel Haboucha, “Waging Lawfare” Canadian Lawyer Magazine (1 November 2011), online: canadianlawyermag.com < http://www.canadianlawyermag.com/Waging-lawfare.html>.

[13] The US and UK as discussed above, and Israel in its 1961 prosecution of Adolf Eichmann.

[14] See e.g. the American Servicemembers’ Protection Act, described by various NGOs as “anti-ICC legislation”, discussed in Sean D. Murphy, Principles of International Law (Thomson West, 2006) at 428.

Canada has been a fervent supporter of and a main actor behind the creation of the International Criminal Court (ICC), one of the first states to ratify the Rome Statute of the International Criminal Court[3] and the first to enact an implementing legislation, the Crimes against Humanity and War Crimes Act.[4] The War Crimes Act has as one of its main objectives to enhance and reinforce Canada’s capacity to prosecute and punish persons accused of the “core” international crimes, namely genocide, crimes against humanity and war crimes, wherever their commission took place. At the heart of the system put in place by the ICC to ensure accountability for the core crimes indeed lies the principle of complementarity. States bear the primary responsibility to prosecute those responsible for international crimes. The ICC will exercise its jurisdiction only if the competent state is inactive, “unable” or “unwilling” to do so.[5] National legislations such as Canada’s War Crimes Act are therefore called to play an increasingly important role in the global system put in place to fight impunity. By acting locally to ensure justice for international crimes, states like Canada can indeed make a significant contribution for the “sustainable development” of international criminal justice.[6]

The Canadian Government has adopted an aggressive “no safe haven” policy[7], echoing other democracies that have vowed to ensure that their countries’ borders would not harbour international criminals. The “no safe haven” policy encompasses many remedies, both criminal and administrative, which could be grouped in three categories. The first category aims at preventing the admission to Canada of people who are or have been involved in war crimes, crimes against humanity or genocide. This includes the denial of visas overseas and denials at ports of entry. This effective measure has prevented roughly 2000 persons suspected of involvement in international crimes to gain access to Canada.[8] Although various issues merit discussion, including the fairness of the determination procedure[9], this post will not be concerned with these preventive measures. Once a suspect has entered or lives in Canada, numerous remedies are available, which can be grouped in two further categories. A second category comprises the most repressive measures that are prosecution in Canada under the War Crimes Act, extradition to a foreign government (upon request), and surrender to an international tribunal (upon request). A third category contains the other remedies, which are more focused on national interest than in ensuring that justice is done for the suspected crimes: revocation of citizenship under the Citizenship Act[10] and deportation under the Immigration and Refugee Protection Act[11]; exclusion from the protection of the 1951 United Nations Convention relating to the Status of Refugees[12], as well as inquiry for inadmissibility and removal from Canada under the Immigration and Refugee Protection Act, including by the designation of governments considered to have engaged in gross human rights violations.[13]

The War Crimes Act could be characterised as the normative culmination of Canada’s long and convoluted history with respect to the prosecution of war criminals. Forty years or so of inaction after World War II were followed by unsuccessful attempts at prosecuting perpetrators of atrocities committed during that conflict on the basis of the amendments brought in 1987 to the Criminal Code.[14] Immigration measures were soon preferred over criminal prosecutions to deal with war criminals found on Canada’s territory, arguably at the expense of a full understanding of the notion of accountability for international crimes. The first case under the new War Crimes Act in Munyaneza[15] is historic from a Canadian perspective. Not only is it the first one, but it also signals a possible return to a more aggressive stance regarding alleged war criminals found on Canadian territory.[16] However, while Canada has resuscitated criminal enforcement mechanisms since the coming into force of the Act, criminal prosecutions still represent a tiny fraction of the repressive mechanisms used against suspects, though they swallow a large part of the allocated budget.

As things currently stand, the vast majority of individuals alleged to have committed international crimes are excluded from Canada. However, they are not sent back to face trial abroad.  The tenth annual report of Canada’s War Crimes Program indicated the following numbers since the inception of the program in 1998 (as of March 2007): 443 removals and 1 prosecution.[17] During the 2007–2008 fiscal year, the Canada Border Services Agency removed 23 persons found to have been involved in war crimes or crimes against humanity[18] and although the reports for the next fiscal years are not yet available, it is known that a second prosecution was launched against Jacques Mungwarere in 2009. There has been one extradition in 2007.[19]

These numbers are telling. In that regard, perhaps the obvious should be recalled: deportation or removal of war criminals from Canada certainly cannot replace criminal prosecutions nor can it be a substitute for extradition.[20] The over-reliance on other remedies, such as deportation and removal from the country, may serve the limited purpose of not allowing Canadian soil to harbour war criminals, but does very little to serve the broader objective of ensuring accountability for the core crimes.[21] Canada should ideally favour prosecution and extradition, and possibly actively seek requests from states in the latter case. The recent extradition requests regarding Jorge Vinicio Sosa Orantes offer an opportunity for Canada to show its commitment to the fight against impunity. Interestingly, Canada will be facing competing extradition requests, at least one from the United States that concerns immigration charges and one from Spain dealing with genocide, crimes against humanity, war crimes, torture, terrorism and/or murder charges.[22] In such cases, Canada should prioritize the extradition request that will end impunity for the core crimes, in accordance with its international obligations and responsibilities in this regard.[23] Moreover, importantly, if there cannot be genuine and fair prosecution elsewhere, Canada bears the legal and moral responsibility to conduct such proceedings before its courts. This might be the situation as regards Léon Mugesera, whose deportation order was confirmed by the Supreme Court of Canada in 2005 and who remains in Canada for reasons unexplained officially, despite alleged extradition requests from Rwanda, in a legal vacuum that has lasted long enough.[24]

While resources will always be an inevitable criteria guiding the exercise by states of their criminal jurisdiction over international criminals found on their territory, this consideration cannot be the main guiding principle of the policy in this regard. The Annual Reports of Canada’s War Crimes Program give hints as to the limitations imposed by the budget allocated to the Program, which remains at roughly $15 Million per year since the coordinated program was established in 1998.[25] The current budget has not taken account of “increases in salary or inflation that impact operational costs, or accommodation and corporate support costs. The result is a significant reduction in real dollar terms (adjusted for inflation) of the value of funds available for all program activities.”[26]

The budget that Canada allows for its War Crimes Program must be proportional to the extent of its international obligations (and responsibilities) and to the ambitions it has set for itself as an international leader in the fight against impunity. It is not a call for Canada to become the world’s prosecutor, nor is it a naïve assertion omitting to take into account practical and resource-based limitations to the recourse to criminal prosecutions. Rather, it is a legitimate appeal to a rich country which has strong investigative capacities and a highly developed legal system to allocate the necessary resources to a collective undertaking that will necessarily depend largely on the serious commitment of the richest and most developed nations. This commitment must be directed at the proper functioning of the international institutions that have collectively been established for that purpose, such as the ICC, but states must commit equally to put to use their national institutions towards realisation of the same fundamental objective of universal accountability for genocide, crimes against humanity and war crimes. It seems beyond doubt that “the current level of program resources will be inadequate to achieving the Program’s goals in the future”.[27]

Having said that, it must be acknowledged that even if resources were significantly increased, numerous suspects of international crimes could not be prosecuted in Canada.[28] Recourse to other remedies is inevitable in order to fulfil the War Crimes Program’s objectives of ensuring both that Canada does not offer a safe haven to war criminals and that the principle of accountability is upheld. There is an apparently insoluble dilemma in the available recourses to deal with war criminals present in Canada. On the one hand, prosecution and extradition –the remedies most respectful of Canada’s international responsibilities- are expensive, complicated and/or cumbersome. On the other hand, deportations and removals are quite unsatisfactory as they offer a very mild version of justice: there is no proper accountability of the alleged perpetrator, no satisfaction or reparation to the victims and very little truth-telling associated with the processes.[29] A debate ensues between those who call for more justice –the idealists- and those who insist on Canada’s inherently limited role in the global endeavour of putting an end to impunity for international crimes –the pragmatists. The principles that underlie transitional justice at the international level, among which figure prominently reconciliation and reparation to victims, can- and perhaps must- be transposed to third states such as Canada that are confronted with the difficult dilemma of dealing with war criminals –and victim communities- on their territories. It is perhaps time to reflect seriously on what could be termed “alternative universal justice”, an innovative form of justice that would acknowledge the inherent practical impossibility of trying in a criminal court all potential suspects of international crimes present on a third state’s territory while giving due recognition to the fundamental principles of justice, accountability and reparation.

[2] Fannie Lafontaine, Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (Toronto: Carswell, forthcoming in 2011).

[3] Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) [Rome Statute].

[4] Crimes Against Humanity and War Crimes Act, SC 2000, c 24 [War Crimes Act or Act]. It entered into force on 23 October 2000.

[5] Rome Statute, supra note 3, Article 17, Article 1 and Preambular Paragraph 6.

[6] See Fannie Lafontaine, “‘Think Globally, Act Locally’: Using Canada’s Crimes against Humanity and War Crimes Act for the ‘Sustainable Development’ of International Criminal Law”, Proceedings of the 36^th Annual Conference of the Canadian Council of International Law which focused on “Canada’s Contribution to International Law”, Ottawa, October 2007; Fannie Lafontaine & Edith-Farah Elassal “La prison à vie pour Désiré Munyaneza – Vers un « développement durable» de la justice pénale internationale”, Le Devoir (2 November 2009) online: <http://www.ledevoir.com/2009/11/02/274892.html>.

[7] See e.g. Canada, Department of Justice, Crimes against humanity and war crimes program – Summative evaluation (Final report) (Ottawa: Evaluation Division, Office of Strategic Planning and Performance Management, 2008) at 8 and 43, online: <http://www.justice.gc.ca/eng/pi/eval/rep-rap/08/war-guerre/war.pdf> [Canada’s War Crimes Program, Summative Evaluation].

[8] Ibid at 44 (numbers covering period 1998-2006).

[9] Stories are sometimes picked up by the media and will eventually call for clarification by the authorities. See e.g. Louise Leduc, “Un Haïtien accusé de crime de guerre par le Canada”, Cyberpresse (10 May 2011) online: <http://www.cyberpresse.ca/actualites/quebec-canada/justice-et-faits-divers/201105/09/01-4397748-un-haitien-accuse-de-crime-de-guerre-par-le-canada.php>.

[10] Citizenship Act, RSC 1985, c C-29.

[11] Immigration and Refugee Protection Act, SC 2001, c 27.

[12] Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

[13] Section 35(1)(b) of the Immigration and Refugee Protection Act, supra note 11. For the various remedies, see website of Canada’s Crimes Against Humanity and War Crimes Program, online: <http://www.justice.gc.ca/warcrimes-crimesdeguerre/process-processus-eng.asp>.

[14] Criminal Code, RSC 1985, c C-46. The better known failure at prosecution is R v Finta, [1994] 1 SCR 701.

[15] R c Munyaneza, 2009 QCCS 2201, [2009] RJQ 1432 [Munyaneza]. For an analysis of the judgment, see Fannie Lafontaine, “Canada’s Crimes against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza case” (2010) J Int’l Crim Just 269; Robert J. Currie & Ion Stancu, “R. v. Munyaneza: Pondering Canada’s First Core Crimes Conviction” (2010) 10 Int’l Crim L Rev 829.

[16] Almost immediately after the sentencing judgment in Munyaneza, supra note 15, a prosecution was launched against Mr. Jacques Mungwarere for acts allegedly committed during the genocide in Rwanda, online: <http://www.justice.gc.ca/warcrimes-crimesdeguerre/successes-realisations-eng.asp#jacques>.

[17] Canada’s War Crimes Program, Tenth annual report, 2006-2007, online: Canada Border Services Agency <http://www.cbsa-asfc.gc.ca/security-securite/wc-cg/wc-cg2007-eng.html>.

[18] Canada’s War Crimes Program, Eleventh  annual report, 2007-2008, online: Royal Canadian Mounted Police <http://www.rcmp-grc.gc.ca/pubs/wc-cg-eng.htm>.

[19] Micheal Seifert, a former German SS member, was extradited to Italy: Italy v Seifert, 2007 BCCA 407, 246 BCAC 46, leave to appeal to SCC refused, [2007] SCCA no 503 (QL).

[20] A. W. LaForest, Extradition To and From Canada, 3^rd ed (Aurora, Ont: Canada Law Book, 1991) at 42: “The aims of extradition and deportation are clearly distinct. The object of extradition is to return a fugitive offender to the country which has requested him for trial or punishment for an offence committed within its jurisdiction. Deportation, on the other hand, is governed by the public policy of the state that wishes to dispose of an undesirable alien”. See also Marie-Pierre Olivier, “L’obligation de juger ou d’extrader dans la pratique contemporaine du Canada” (1997) 10 RQDI 137 at 165.

[21] See e.g. statement of December 2008 by Dr. Lloyd Axworthy, President and Vice-Chancellor of the University of Winnipeg and Canada’s Foreign Minister from 1996-2000, speaking as a member of the Honourary Council of the Canadian Centre for International Justice, online: <http://www.ccij.ca/uploads/ccij-news-release-2008-12-02.pdf>: “The International Criminal Court is premised on the idea that the majority of trials related to massive human rights abuses will take place in national courts in countries like Canada,” he explained. “Currently there is an over-emphasis on deportation when alleged human rights abusers are found in Canada. This is about conflict prevention and redress for victims, and I believe Canadians are strongly in support of those goals”.

[22] For the United States, see e.g.: The Canadian Press, “Guatemala war crimes suspect arrested in Alta.”, CBC News (18 January 2011) online: <http://www.cbc.ca/news/canada/calgary/story/2011/01/18/calgary-lethbridge-guatemala-war-crimes-arrest.html>. For Spain, see e.g. LaToya Sawyer, “Spain court seeks extradition of Guatemalan massacre suspect”, Jurist Legal News & Research (4 April 2011) online: <http://jurist.org/paperchase/2011/04/spain-court-seeks-extradition-of-guatemalan-massacre-suspect.php>.

[23] See also Pascal Paradis & Matt Eisenbrandt, “Canada can’t ignore alleged crimes against humanity”, Letter, Calgary Herald (8 April 2011) online: <http://www.calgaryherald.com/news/Canada+ignore+alleged+crimes+against+humanity/4580386/story.html>.

[24] Mugesera v Canada (Minister of Citizenship and Immigration), 2005 CSC 40, [2005] 2 SCR 100. States (and the ICTR) have had numerous difficulties to extradite or send back suspects to Rwanda, essentially because of concerns for their security or that they could not get a fair trial there. See, for instance, the case of Sylvere Ahorugeze, whose extradition from Sweden to Rwanda is halted pending a decision of the European Court for Human Rights: online: <http://www.trial-ch.org/en/resources/trial-watch/trial-watch/profile.html?tx_jbtrial_pi2%5Btab%5D=legal-procedures&tx_jbtrial_pi2%5Bprofile%5D=sylvere_ahorugeze_476&cHash=12522eddaa>; for the UK, see: “Rwanda accused win UK court case”, BBCNews (8 April 2009) online: <http://news.bbc.co.uk/2/hi/uk_news/7989534.stm>.

[25] Canada’s War Crimes Program, Summative Evaluation, supra note 7.

[26] Ibid at 52-53.

[27] Ibid at 52. See also the steady calls by civil society organisations, including the Canadian Center for International Justice, and interested citizens for an increase of budget: online: <http://www.ccij.ca/programs/policy-work/index.php?WEBYEP_DI=1>.

[28] Canada’s War Crimes Program, Summative Evaluation, supra note 7 at 47: the costs of prosecution is slightly over $4 million while extradition and surrender to an international tribunal range between $471,251 and $526,341.

[29] Although administrative processes for the revocation of citizenship, for instance, do involve the presentation of evidence that goes at the core of crimes committed in certain conflicts or circumstances : see, e.g., such a recent process in the case of Branko Rogan, the first citizenship revocation case involving a modern war crime : Kim Bolan, “Port Coquitlam man denies he took part in war crimes”, Vancouver Sun (28 April 2011) online: <http://www.vancouversun.com/news/Port+Coquitlam+denies+took+part+crimes/4687694/story.html#ixzz1MkmhPc00>.

Mr. Khadr, however, will be imprisoned for a maximum of 8 years, on account of a plea agreement[1] which was signed, at least in part, on the understanding that, having served no less than a year of his sentence in the U.S., the Canadian Government would be amenable to an application to serve the remainder of his sentence in Canada, subject to Canadian rules of parole.  On 23 October the Government of Canada, in a diplomatic note[2] to the U.S. Government, expressed its “inclination to favourably consider” such an application.

The terms of the plea agreement are severe.  Among other things, Mr. Khadr waived any claim to credit for time served, agreed to direct counsel to submit a motion to dismiss his petition for habeas corpus in his case pending before the U.S. District Court for the District of Columbia, as well as all claims currently pending in the U.S. Court of Appeals for the District of Columbia Circuit.  In addition, while in U.S. custody, he has agreed to submit to interviews “whenever and wherever requested” by U.S. law enforcement officials and to answer truthfully during these interviews, to be conducted in the absence of legal counsel, on pain of prosecution for perjury.  Mr. Khadr also agreed to call only approved witnesses to his sentencing hearing, and confirmed his understanding that the U.S. Government may dispose of the physical evidence adduced at trial.[3]  He has also pledged to give all proceeds in connection with any publication or dissemination of information relating to the conduct alleged on his charge sheet to the Government of Canada.

In his last statement before the Commission, Mr. Khadr said he hoped that his jurors would consider the fact that a U.S. interrogator threatened to have him gang-raped to death.[4]  Meanwhile, his lawyers tried but failed to persuade the Military Commission’s jury panel that certain concessions should be made to the fact that Mr. Khadr was 15 at the time of ‘perpetration.’[5]

Notwithstanding its revocable offer to give Mr. Khadr’s prospective application for repatriation favourable consideration, the Government of Canada has done nothing to protect him from the injustices he continues to suffer, while in U.S. custody.  To the contrary, according to the Supreme Court of Canada (SCC),[6] the Canadian Government, by interrogating him while he was being improperly treated by U.S. officials, has breached its human rights obligations and Mr. Khadr’s rights under the Canadian Charter. This breach of Mr. Khadr’s rights will continue until the Government provides a remedy.  Lamentably, more than 9 months after the SCC’s decision, the Government has yet to provide what it is required to provide.[7]  The Government’s current position amounts to an endorsement of the highly flawed ‘justice’ system to which Mr. Khadr has been subjected and casts significant doubt on the Government’s respect for its human rights obligations and the rule of law.   

[2]http://beta.images.theglobeandmail.com/archive/00978/Read_diplomatic_mem_978462a.pdf

[3] On the quality of the evidence adduced at Mr. Khadr’s trial, see: http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/03/25/lt-cmdr-william-c-kuebler-and-rebecca-s-snyder-the-truth-about-child-soldier-omar-khadr.aspx

[4] http://www.theglobeandmail.com/news/politics/verdicts-in-khadr-is-ottawas-problem-now/article1779878/page2/  See also: http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/5/0/0/0&contentId=2018

[5] Though the United States and Somalia are the only two states not to have ratified or acceded to the UN Convention on the Rights of the Child. The U.S. has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts.

[6] Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44

[7] http://www.theglobeandmail.com/news/opinions/a-chance-to-do-the-right-thing/article1452503/

“What does this have to do with law?” you may ask (other than its relevance to my ongoing unjust dismissal hearing). Simple: by passing the environmental buck on to financial regulatory agencies such as the Ontario Securities Commission (OSC), we would be treating them just like poor old Tibor.

In the land of the incompetent, the semi-competent man is king. Similarly, in the ham-fisted world of inefficient and ineffective governmental organisations, a body which generally satisfies its mandate, such as the OSC, is a paragon. Of course, the OSC (or the rest of Canada’s financial market regulators) isn’t beyond criticism. Many complain that Canada is more lax towards fraud and white-collar crime than other countries. Nevertheless, the OSC has fared much better in meeting its dual mandate – protecting investors while promoting fair and efficient markets – than equivalent organizations in other jurisdictions, such as the Securities and Exchange Commission (SEC) in the United States (particularly during the financial crisis).

It is understandable that some would want to use a relatively effective (and semi-autonomous) governmental body such as the OSC to advance important causes which are unrelated to its mandate, just because they have been neglected by more relevant organisations. Examples of such causes could include labour standards, unpopular executive decisions (see this year’s OSC ruling involving Magna International), and now environmental standards. “Tibor,” I mean “OSC,” you might say, “Environment Canada has little power to force businesses to improve their sustainability practices. Why not use corporate disclosure rules to help things along?”

Professor Dhir’s proposal, in his recent special submission to Legal Frontiers, is of course phrased differently, but the effect is largely the same. Professor Dhir argues that the OSC already has the power to require disclosure on environmental matters, and that such disclosure is of material significance to investors. He proposes that Canadian (or Ontario) law be modified to require that companies explain an absence of environmental and social policies, and assess the success of such policies.

The crucial assumption for having financial regulators enforce environmental disclosure is that it is materially relevant to investors because it corresponds with financial performance. Yet various studies have examined this link and found it to be inconclusive. For this reason, National Instrument 51-102 (which applies across Canada) requires companies only to report on “environmental policies that are fundamental to […] operations”. This is logical on its face: in some industries (such as mining or fishing) environmental policies may closely relate to financial performance, while in others (such as manufacturing musical instruments) the link may be nonexistent. Disclosure of these policies is thus only relevant to investors in the former case.

The distinction is important because as international political action on the environment – and particularly climate change – stalls, individual countries will turn to non-conventional means and organisations to achieve progress. For example, the United States has been considering using tariffs within the World Trade Organisation (WTO) framework to prompt action on greenhouse gas emissions. But the risk is that pulling in unrelated organisations such as the OSC or the WTO may merely confuse environmental law, reducing the impetus for a proper solution without actually achieving much.

There are many strong arguments for forcing corporations to implement environmental and social policies. But these arguments may not involve information which is materially important to investors. For this reason, it unwise to pursue action on corporate environmental responsibility within the context of a financial regulatory body tasked with protecting investors – even if progress on other fronts has been limited. Doing so is like forcing a square peg into a round hole, just because someone put gum in the square hole. Nevertheless, the temptation to do so in this case is strong, particularly since political action on the environment is so full of gum. But as Tibor could tell you, foisting the tough jobs onto someone else can only get you so far.

I only wish he hadn’t told a certain Labour Relations Board the same thing during a certain unjust dismissal hearing.

QUICK, FIND TIBOR!

However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian legal system operates.

Ontario in R. v. N.S. – “Bright line rules do not work”[2]

(i) Facts

N.S. alleged that she was repeatedly sexually assaulted by her uncle and her cousin, the two accused, when she was young. N.S. is Muslim and wears the niqab. At the preliminary inquiry, both accused sought that she remove her niqab when testifying at that hearing. The judge opined that the religious belief of N.S. was not sufficiently strong, largely owing to a driver’s license in which her face was visible. N.S. appealed this decision. The Superior Court quashed the decision of the preliminary inquiry judge, opining that the “judge had exceeded his jurisdiction by balancing Charter values”. The Superior Court did however trace the authority for the preliminary inquiry judge to decide on the niqab to the Criminal Code. The Superior Court then detailed the manner in which such a determination should be made and remitted the case to the preliminary inquiry judge. N.S. appealed and the accused cross-appealed.[3] The proceeding on the merits has yet to commence.

(ii) Court’s Analysis[4]

The Court recognized that its was faced with the difficult task of reconciling two claimed Charter rights. The claim by the accused was the right “to make full answer and defense at trial” (para. 49), which accords with the principle of fundamental justice. “An accused who is denied the right to see the full face of a Crown witness, particularly the accuser, during cross-examination loses something of potential value to the defence” (para. 60). The claim by N.S. was the right to wear the niqab while testifying, in accordance with the guarantee of freedom of religion contained in the Charter.

The Court undertook a painstaking analysis on the how a court should attempt to reconcile the two competing Charter rights. The Court was guided by the earlier writings of Justice Iacobucci, who said:

It is proper for courts to give the fullest possible expression to all relevant Charter rights, having regard to the broader factual context and to the other constitutional values at stake (para. 47).[5]

To this end, the Court contended that reconciliation has to be “specific to factual context” (para. 48), as rights do not float in abstract but rather apply to very real situations, which vary greatly from case to case.

The Court then detailed the specific approach to be taken by a court in weighing the competing claims of the right to wear the niqab and the right to a full defense. First, a judge would need to determine whether or not the right of N.S. to wear the niqab is protected under the s. 2(a) guarantee of freedom of religion (para. 70). If so, the second stage of the analysis would then consider whether or not the niqab would interfere with the cross-examination process in “more than a minimal or insignificant” way (para. 71). The goal at this stage is not to undertake a detailed analysis of the two competing claims but rather to assess whether the right of the accused is negatively affected in a non-trivial manner. If second stage is answered in the affirmative, then the judge must analyze the competing Charter claims and “attempt to reconcile those two rights by giving effect to both” (para. 73). The Court detailed a list of considerations to be made in reconciling the rights of N.S. and those of the accused, which included:

• The limited manner in which the niqab interferes, as it does not obstruct demeanor, tone of voice, eye movement, and body language (para 73)
• The ability of a judge to instruct a jury that difficulty that may be encountered in assessing the credibility of the Crown witness owning to the niqab is to be “redound against the Crown” (para 74)
• The nature of the proceedings, as a preliminary inquiry varies greatly from trial proceedings (para 75)
• The forum of trial, since, for example, in a case before a judge, the judge will develop an understanding of the extent of niqab’s obstruction (para. 76)
• The nature of the evidence to be given – whether it is core or peripheral (para. 77)
• The extent to which a decision about the niqab would feed alleged stereotypes against Muslims and niqabi women (para. 78)
• The fact that N.S. is testifying in a sexual assault cases, where a victim is often in a vulnerable position (para. 80)
• The public interest in ascertain the truth, which may be affect by the niqab, though also by the discomfort that the witness may feel if not allowed to wear the niqab (para. 81)
• The societal interest in having a visible administration of criminal justice (para. 82)
• The possibility of female court staff and a female judge, along with a closed hearing (para. 85)
• The possibility of different fabrics or styles of niqab (para. 86)

By giving consideration to these points, a court should do its utmost to reconcile the two Charter rights to the extent possible.

Finally, the Court made the reluctant profession that in the case that the two rights are truly irreconciable, “the right [of the accused] must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab” (para. 88). The Court very carefully circumscribed the extent to which such a result should be an inevitability, stressing the important of genuinely assessing the competing rights. As helpful instruction, the Court provided the example that an objection over the niqab at the preliminary inquiry based solely on importance of the witness’s facial demeanour for cross-examination would fail (para. 97).

The Court did not feel that it had adequate information to make a definitive ruling, thus the case was remanded to preliminary inquiry judge to assess the case as outlined by the Court of Appeal.

France’s Constitutional Council Approves Niqab Ban

Across the Atlantic, the Constitutional Council (Conseil Constitutionnel) of France gave its final approval to government legislation banning the niqab in public spaces on 7 October 2010. The Constitutional Council is France’s highest body responsible for making sure that legislation and statutes are consistent with the Constitution of France. Legislation is sometimes referred to the Council for an opinion on its constitutionality.

The Loi interdisant la dissumulation du visage dans l’espace public was proposed in response to political and public discontent over the niqab in the public sphere – some arguing that it created discomfort and other contending that it had not place within French’s national value of laicité.[6] The core of the legislation is contained within the first two articles:

Article 1

Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage.

Article 2

I. Pour l’application de l’article 1er, l’espace public est constitué des voies publiques ainsi que des lieux ouverts au public ou affectés à un service public.

II. L’interdiction prévue à l’article 1er ne s’applique pas si la tenue est prescrite ou autorisée par des dispositions législatives ou réglementaires, si elle est justifiée par des raisons de santé ou des motifs professionnels, ou si elle s’inscrit dans le cadre de pratiques sportives, de fêtes ou de manifestations artistiques ou traditionnelles.

Under the legislation, the niqab would be banned from all public forums. An individual ‘caught’ wearing the niqab would be fined 150 euros, though a male forcing a woman to wear the niqab would be given a one-year jail term and fined 30000 Euros.

After being adopted by the French National Assembly (13 June 2010) and the French Senate (14 September), the Presidents of both assemblies asked the Constitutional Council for an advisory opinion on the law (it is interesting to note that not since 1959 have the two assemblies simultaneously asked the Council for an advisory opinion on a given legislation). The Council’s recent decision confirmed the constitutionality of the law, which will take full effect in April 2011.

What is particularly interesting in the decision of the Council is the boldness with which it comes down in favour of the legislation. The commentary in Cahiers du Conseil Constitutionnel[7] on the niqab legislation explains how French parliamentary discussion on the niqab has always engendered an balancing act between, on the one hand, religious liberty, freedom of expression and respect of private life and, on the other hand, laicité, human dignity and equality of men and women. Despite this, the actual decision released by Constitutional Council remained fully silent on the former set of rights. The Council specifically cited public order, security and women’s rights as constitutional values lending support to the legislation (paras. 4-5). Thus in it’s final analysis, the Council found the proposed law conformed to the Constitution of France.[8]

A “Canadian Flavor” in the Way We Operate

By contrasting the two decisions, one begins to sense a “Canadian flavor” in the way contentious religious matters, such as the place of the niqab within society, are dealt with by our courts. R. v. N.S. is the most recent of a line of cases where the Canadian courts have grappled with religious freedoms.

Two aspects of the decision in R. v. N.S. characterize this distinct “Canadian flavour”. First, the Court of Appeal repeatedly emphasizes the importance of reconciliation. The Court comes down strongly against those dogmatically supporting either side of the niqab debate, clearing stating, “Bright line rules do not exist” (para.97). Second, the Court’s decision reveals an increased interest in substantive equality rather than formal equality. N.S. made a unique claim that the niqab was part of her identity as a Muslim and as a woman. The Court was willing to entertain this for the purpose of its analysis. These aspects of the Court’s decision greatly nuance from the decision of the Constitutional Council. The Council’s decision – in upholding the law banning the niqab in public – shows no attempt at reconciling rights. Moreover, one senses a much stronger reliance on formal equality, given the Council’s insistence that the ban would uphold the rights of women in France.

Whether or not one likes the decision of the Court of Appeal, it reveals a level of tolerance in the way minority claims and religious freedoms are received in the Canadian court system. It provides some indication that Canadian values of multiculturalism operate more than just a punch-line and, in fact, may be present in the way our courts operate.

[2] R. v. N.S. 2010 ONCA 670 at para. 97.

[3] Only one of the two accused, the cousin, was party to the appeal to the Ontario Court of Appeal.

[4] I am specifically interested in the manner in which the Court of Appeal deals with competing Charter rights. The Court outlines details in its decision the jurisdiction of the preliminary trial judge to address Charter values, which I do not present in detail here, as it is not my focus of interest in this article.

[5] Citing Justice Iacobucci, “‘Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2002), 20 S.C.L.R. (2d) 137, at 140.

[6] The French conception of laicité differs from Canadian understanding of secularism in impotant ways, which I do not believe can glossed over quickly if one is to appreciate the context in which a decisions over the niqab have been made. However, noting this point, I leave it for another discussion.

[7] Les Cahiers du Conseil constitutionnel are a publication of the Conseil. On 7 October 2010, when the Counsel released its decision on the law, a commentary on the law was released on the same day in the Cahiers du Conseil constitutionnel.

[8] The Council made on exception, namely that the niqab would be permitted in Muslim places of worship, such as mosques.

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s all well and good to give neighbours’ coasts an old fashioned “slicking”. But as any eighth-grader who gets caught TP-ing someone’s house because my friend Alan can’t keep his mouth shut knows, there must be a time for cleaning up as well. Unfortunately, international law provides few answers about who is responsible for cleaning up international spills.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter explicitly excludes any “wastes derived from the exploration and exploitation of sea-bed mineral resources”. As a result, it will likely not apply to oil spills. The UN Convention on the Law of the Sea is more promising. It specifies at article 194 that “states shall take […] all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source”, and specifically, “pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil”. However, for the U.S. oil spill UNCLOS is of limited value because America has not ratified the treaty. Instead President Reagan in 1983 directed government agencies to treat most parts of the treaty as customary law.

Beyond the realm of international treaties, much of the regulation of the offshore oil industry is carried out by special national regulators. These include the U.S.’s Minerals Management Service (MMS), the Norwegian Petroleum Directorate, Britain’s Health and Safety Executive, and Australia’s Department of Minerals and Petroleum Resources. In Canada the Canada-Newfoundland Labrador Offshore Petroleum Board (CNLOPB) regulates the industry, since Newfoundland-Labrador is the only province where offshore drilling currently occurs.

National offshore oil regulators do little to coordinate standards with one another. They lack even uniform sex and drugs corruption standards. A prominent example is the absence of coordinated regulations requiring the presence of an “acoustic switch” on offshore rigs. This is a failsafe device which can be remotely (and reliably) used to close off a gushing well on the sea floor in the event of an accident – such as that on the Deepwater Horizon rig. Acoustic switches are required on rigs in Norway, Brazil, and Canada, and they are present in British operations in the North Sea. Yet in a 2003 report to the MMS, requiring acoustic switches was not recommended because “they tend to be very costly”. As a result, acoustic systems are not present on American rigs.

The lack of coordination between oil regulators stands in stark contrast to the kind of international cooperation seen in other industries. IOSCO, the International Organization of Securities Committees, allows national (and provincial) securities regulators to unify policy approaches, while central banks are currently negotiating their third set of global banking standards through the Switzerland-based Basel Committee.

With the ever-increasing global demand for oil, offshore spills affecting multiple countries will likely be inevitable. Some day China will catch up with the pros in this respect, leaving behind their current small-town spills. But if oil-producing countries and their national regulators don’t do more to agree on standards for preventing and cleaning up international spills, then the international dimension of spills will remain one-sided. In that respect, perhaps all of the offshore oil producers will remain amateurs.

BUSH LEAGUE

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.

[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.