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…

Continue reading this entry ➔

Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent…

Continue reading this entry ➔