Two Worlds Apart: Canada Supports the Rights of a Niqabi Woman while France Approves Law Banning the Niqab in Public

If there existed an award for Controversial Clothing Garment of the Year, surely the niqab would grab the prize for 2010.[1] The niqab took the spotlight earlier this year when Quebec proposed legislation that would prohibit the wearing of the niqab for an individual seeking a government service. After a pause of several months, the hearing on the proposed legislation resumed on Tuesday (19 October 2010), though this issue has temporary drifted away from national interest.

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…

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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…

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Does the Charter Follow the Flag? the Afghan Detainee Transfers Example

In 2007, Amnesty International Canada and the BC Civil Liberties Association brought an application for judicial review of the transfer of individuals detained by the Canadian Forces deployed in Afghanistan. This action arose from allegations that the Canadian Forces were not taking adequate precautions to ensure that individuals, whom the Canadian Forces captured in Afghanistan and transferred to the Afghan forces, were not being tortured. To support their application, the plaintiffs sought a declaration that sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms (the Charter) applied to individuals detained by Canadian Forces in Afghanistan. Both the Federal Court and the Federal Court of Appeal held that the Charter did not apply to the actions of Canadian Forces in Afghanistan.

Having previously argued that the Supreme Court of Canada (SCC) should narrow its ruling in Hape, I was disappointed to learn that it turned down an opportunity to hear this case. In my last entry, I argued that when establishing whether the Charter applies overseas, the foreign state’s consent should only be the determinative factor where Canadian authorities or agents would be enforcing the Charter in that state. With all due respect to Mactavish J.’s efforts to navigate Hape’s legal labyrinth, the Federal Court’s decision in Amnesty International reveals the confusion resulting from Hape. This confusion stems from LeBel J.’s assertion that the…

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Omar Khadr – When Two Wrongs Don’t Make a Right…?

On Friday, January 29, 2010, the Supreme Court of Canada released its much-anticipated decision concerning the repatriation of Omar Khadr. In Canada (Prime Minister) v. Khadr, 2010, (“Khadr 2010”), the Court upheld the finding of the Federal Court of Appeal that the government of Canada violated Khadr’s Section 7 rights to life, liberty and security protected under the Canadian Charter of Rights and Freedoms (“Charter”). However, on the issue of remedy, the Supreme Court ruled that the government could not be obliged to ask the United States to repatriate Khadr. And so Khadr’s long quest for justice remains an uphill battle after Friday’s decision, leaving it to the government to decide how react (if at all) to its breach of Khadr’s Charter rights and whether it will take any steps to seek his repatriation.

The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize…

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Does the Charter Follow the Flag?

Photo by Sgt. Gerry Pilote

Lurking behind the Afghan detainee transfer scandal is the issue of whether the Canadian Charter of Rights and Freedoms (the Charter) applies to government action that occurs outside of Canada. The Charter itself provides no definitive answer because it does not contain an express territorial limitation. Section 32(1)(a) of the Charter only stipulates that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament …”. Writing for the majority of the Supreme Court of Canada (SCC) in R. v. Hape, LeBel J. held that the extraterritorial application of the Charter is impossible without the consent of the foreign state (para. 85).[1] While I support the ruling in Hape, I believe that given the chance, the SCC should explicitly narrow this conclusion to situations where Canadian authorities or agents would be enforcing the Charter in a foreign state. Beyond a situation that demands extraterritorial enforcement, an interest analysis should replace consent as the determinative factor in the assessment of whether the Charter applies outside of Canada.

The primary limitation on the reach of the Charter is Canada’s obligation to respect the sovereignty of other states (Hape, para. 59). Sovereignty is perhaps best thought of as the supreme power of each state to exercise jurisdiction on its territory and over…

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Who needs a written constitution?

We in Canada tend to think of our Constitution, most notably the 1982 Canadian Charter of Rights and Freedoms, as a distinct source of national pride. Indeed, the importance of the Charter cannot be overstated – it has had far-reaching international influence as a model of constitutional reform, for example helping to shape the post-Apartheid South African constitution, the New Zealand Bill of Rights Act, and the UK Human Rights Act;[1] moreover Canadian Charter cases are “routinely referred to in most of the Commonwealth.”[2]

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written…

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