An article jointly written by David Shulman and Lawrence Gridin
Last week the government of Québéc announced that it would restrict female Muslims from covering their faces with the niqab. This article is about the fundamental freedoms that we enjoy as Canadians and human beings, and the power of the government to encroach upon those freedoms.
The legislation proposed in Québéc will prevent a woman wearing a niqab from being able to access public services, including consulting doctors at a hospital or attending classes at university. It also prevents all government employees from wearing a niqab, including those employees who have no contact with the public. More details can be found here.
Prime Minister Harper and Liberal Leader Michael Ignatieff have announced that they support the ban, and a large (if not overwhelming) majority of Canadians agree with them.
A Primer on Freedom
Let’s begin our discussion with a review of the Ann Coulter affair, which bears some analogues to the Québéc niqab issue.
We cannot think of another person whom we personally disagree with more on virtually every dimension than Ms. Coutler. We have difficulty thinking of anyone else who spews out as much vile hate, ignorance and prejudice as Ms. Coulter. We’re bothered by the fact that there is any demand — outside of perhaps morbid curiosity — for her wares at all.
Here are three pieces, taken from Ms. Coulter’s repertoire, that support our opinion:
“They’re [Democrats] always accusing us of repressing their speech. I say let’s do it. Let’s repress them. Frankly, I’m not a big fan of the First Amendment.”
– University of Florida speech, October 20, 2005.
“I have to say I’m all for public flogging. One type of criminal that a public humiliation might work particularly well with are the juvenile delinquents, a lot of whom consider it a badge of honor to be sent to juvenile detention. And it might not be such a cool thing in the ‘hood’ to be flogged publicly.”
– MSNBC, March 22, 1997.
“I think [women] should be armed but should not vote…women have no capacity to understand how money is earned. They have a lot of ideas on how to spend it…it’s always more money on education, more money on child care, more money on day care.”
– Politically Incorrect, February 26, 2001.
Despite our profound disagreement with her views, we would fight vigorously to protect Ms. Coulter’s right to express them. The right to freedom of expression is guaranteed by our Charter of Rights and Freedoms. We would proudly defend her right to freedom of expression in any court with every ounce of our ability and integrity, just as vigorously as we would defend our own right to criticize and disagree with her views.
Mr. and Mrs. Shulman once visited David in Paris. One evening, they left David and joined some tourists from other parts of the world for dinner. Conversation turned to politics, which is Mr. Shulman’s favourite subject. Fueled by good food, wine and company, the discussion became rather heated as the diners grappled with various “issues of national importance.”
Eventually, Mr. Shulman gently attempted to change the subject, worried that someone might be offended by the discussion of politics at the table. But a woman at the next table interjected. In a thick German accent she said, “If people in my country had kept talking, we might have prevented the Nazis’ rise to power, this city might not have been occupied, the Holocaust might have been avoided.” The two tables joined and the political conversation was allowed to continue.
John Henry Wigmore, the famous U.S. jurist, wrote that cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of truth” (Evidence, Chadbourn rev. (1974), para. 1367, p. 32.). We believe that the facts and ideas of national importance are put to this same test at the dinner tables, public squares and university lecture halls of this nation by Canadians every day — whether they realize it or not.
We also believe that the more insidious and ignorant, the more hateful and bigoted, the more loony and absurd a point of view is, the more important it becomes for the light of public discourse to shine brightly upon it. Only in the harsh light of exposure can ideas be scrutinized and fallacies be laid bare before a wide audience. That’s how a democratic society disarms and marginalizes harmful misconceptions.
Freedom of expression is one of the keystones which upholds our Canadian democracy. As Justice Cory once wrote, “it is difficult to imagine a guaranteed right more important to a democratic society.” Democracy is fundamentally defined by innovation and change. Beliefs about the best way to live evolve over time to meet the needs of society. Ideas are the fuel for this engine of innovation. When ideas are suppressed, the engine chokes and grinds to a halt.
Ms. Coulter’s right to freedom of expression is a right that is commonly held by all of us. When Ms. Coulter’s right is eroded, all of our rights are equally eroded along with it. One way to erode that right is by attempting to censor and intimidate a person into silence, which is allegedly what happened recently at the University of Ottawa. [For the sake of discussion, we will assume that Ms. Coulter was threatened with violence were she to appear for her scheduled speech at the University. The only thing we know for sure is that Ms. Coulter’s people called off the engagement. Whether violence was ever threatened or whether the protest was peaceful and legitimate, we do not know.]
As a result of the incidents at the University of Ottawa, Coulter became a martyr instead of a moron that day. To really get a sense of how sadly Canada failed at the University of Ottawa, watch how our entire nation was misrepresented to the American public. Freedom of expression, a freedom guaranteed to everyone in Canada by section 2(b) of the Canadian Charter of Rights and Freedoms, is conveyed by this Canadian columnist and unwitting Fox News “straw man” as some kind of pathetic, meager privilege. It is painful to watch.
The truth is that Canadians cherish the right to freedom of speech. It is a freedom which has been defended vigorously and repeatedly by the Supreme Court of Canada. Recognizing its importance to the functioning of our democracy, Canadian courts have been careful to place very few limitations on the exercise of the freedom.
By now you’re wondering what any of this has to do with the proposed niqab ban that this article’s title refers to. We ask that you take from this discussion of Ann Coulter the following principles:
- Canadian constitutional rights and freedoms are essential to our liberal democratic society.
- Many social issues are best addressed by people sharing ideas and points of view in books, speeches, protests, YouTube videos, songs, and all the other modes of discourse and cultural expression. This method of sorting out what is right and wrong, what is a truth and a lie, is not only more effective than putting these determinations in the hands of a legislature, it is the reason we have an open society in the first place.
- Rights and freedoms are invariably going to be exercised in ways that not everyone will agree with. If these disagreements never arose, society wouldn’t have to “guarantee” these rights in our Constitution and courts of law. But the deprivation of those rights and freedoms — whether it be by intimidation, violence or legislation — hurts us all.
The Supreme Court of Canada has explained:
A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct… What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”.
We personally have mixed views on the niqab, and religious symbols in general. Fortunately, we’re in Canada, so we can elaborate.
Regarding the wearing of the niqab specifically, we believe that it is a potentially self-harming religious practice. A person’s identity is intertwined with their physical person. There is no natural reason for a person to be “modest” regarding their own identity. Everyone should be proud of their identity, especially if they are a good person.
Society has limitless things to offer each of us: love, knowledge, happiness, culture, beauty, adventure, recognition and accomplishment. If a person is unable to share their identity with society, a person may be limited in the extent to which they can participate in society. A person who does not fully participate in society will likely not realize their individual potential; society as a whole suffers.
The niqab is a visual and symbolic barrier. It’s purpose is to promote privacy by obscuring identity. Humans are social animals; a barrier between a person and society dehumanizes.
Because the niqab is worn only by women, this dehumanizing effect is unequally borne between genders. Gender equality is a fundamental Canadian value which finds expression in section 15 of the Charter. Wherever the niqab promotes or represents the view that woman are inferior to men, we strongly oppose it. But that is not the only purpose of the niqab.
The small minority of Muslim women who wear the niqab do so for many reasons. At least some of these reasons can be categorized as follows.
First, there are women who do not wear the niqab by choice. These are women who have been coerced into wearing it by dominating males who deprive them of their freedom to make fundamental choices for themselves. Violence may be the means used to exert this control. These women effectively have no choice at all.
Second, there are women who wear it — not because of overt violence — but because of intense cultural pressure. These women have a choice, but it is a highly restricted choice, because the consequences of choosing not to comply may be unduly onerous.
Third, there are those women who wear a niqab because they believe that their religion compels them to do so and that wearing a niqab is the moral thing to do. These women also have a highly restricted choice, in that deciding not to wear the niqab would be an affront to their own sense of values. For them, it would be a deliberate choice to do the wrong thing.
Fourth, there are women who make an informed choice to wear a niqab. Some of these women wear the niqab simply because they prefer not to be sexualized and gawked at by men. Alternatively, they may wear it as the ultimate expression of their identity and the pride that they take in their faith. While many people see the niqab as a symbol of oppression, for some women, the niqab is a symbol of rebellion and defiance. These women may don the niqab precisely as a means of protesting the decline of values that they believe strongly in. They may wear it as a powerful expression of their world view and out of a desire to promote a system of values that they think the world ought to embrace.
This is an abbreviated list, and it is impossible to say which proportion of niqab-wearing women fall into each of the categories. It is also impossible for the State or a law to ever make this calculation in practice.
What is our answer to the women in the fourth category who make a voluntary choice? We do not particularly like the choice these women have made, primarily because we do not like barriers between people and society. However, we believe that it is completely paternalistic to tell these women that we know better, that they’ve been brainwashed, and that they have no right to express their values. Thus, our answer comes in the form of respectful disagreement with the views of these women, and nothing more. We cannot find a way to justify the intrusion of the State into the private decision to don the veil:
The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.
But apparently, a majority of Canadians, the Prime Minister of Canada, the leader of the Opposition, and the Government of Quebec all think that the response to a practice they disapprove of should be a legislative one, namely a legal ban on the niqab. Is this not another form of coercion which deprives women of the freedom to choose?
The Proposed Law
There are legal reasons why Bill 94, if it becomes law, will very likely be found to be an unjustifiable violation of the Constitution. In particular, the law would undoubtedly violate section 2(a) of the Charter, which guarantees freedom of conscience and religion to everyone. For women in the fourth category at least, the law would also violate section 2(b) of the Charter which guarantees our rights to freedom of thought, belief, opinion and expression.
Let’s get one thing cleared up. The government lawyers were aware that the Bill would likely offend the Charter, so they took some precautions when drafting the Bill: first, they defined the legislative objectives to be identification, security and communication; they played down the issue of gender inequality and played up the issue of religious neutrality of the State. You won’t find any of the above argument on the niqab in Bill 94, not surprisingly. Better still, section 4 of the Bill states that accommodation must comply with the Charter.
The deprivation of freedom of religion arises from the subsequent provisions of the Bill, which establish that compromise — defined as allowing the person to wear the niqab, not the other way around — may be granted if it is reasonable, does not infringe the rights of others, is not unduly costly and does not create any problems of identification, security and communication. Furthermore, the Bill puts the determination of these elements in the discretion of the administrative bodies. In other words, the Bill is designed to pay lip-service to the Charter while using broad definitions and administrative discretion to undermine those Charter rights and freedoms.
Lastly, section 6 makes it mandatory for all government employees to have an uncovered face when at work.
But the obvious legislative objective is found in the effect of the Bill, which forces niqab-wearers to choose between certain religious practices, values and beliefs, on the one hand, and basic, essential public services on the other. The legislators are not interested in identification, security, and communication. They want to suppress religion and expression which they do not like.
For further proof of the actual objective of Bill 94, listen to Christine St-Pierre, Québéc’s minister responsible for the status of women, who called niqabs “ambulatory prisons” and said Québéc was a “world leader” when it comes to gender equality, and that with Bill 94, “we prove it once again.” Again, it is this unstated objective that the majority of Canadians support. The Government of Québéc is trying to get it passed under one legislative objective but they’re obviously more interested in another. Regardless of whether this is all for the best, it’s really dishonest legislating.
It’s also a very ironic law. Those women who wear the niqab because of the edicts and expectations of their family would now simply be subjected to the edicts and expectations of the rest of society. In neither case do those women get to exercise any freedom of choice of their own. It’s a totally illusory “progress.”
Another irony is that the law is being introduced in a province that has fought so hard against cultural, political and religious oppression for hundreds of years. The French culture, language and once-predominant religion has been accommodated by the majority since Confederation. For example, section 93 of the Constitution Act, 1867 guarantees that the Catholic School system (“Denominational Schools”) would be funded with tax dollars and could not be dismantled by the provincial governments. This same accommodation is being denied to the minority of Muslim women who veil their faces.
A common argument is that it’s not the wearing of the niqab that is so wrong, it’s the abuse that is associated with the practice. This is an argument which responds to the first category of women we’ve described. Again, we don’t know the strength of the correlation between the practice and physical abuse. Even assuming that there is a connection, this argument forgets the fact that violence and coercion are prohibited by the Criminal Code. These are criminal acts, and those individuals that commit these acts will be investigated by the police and rightly prosecuted.
Some people may think that this is not enough, that we should prevent these crimes from happening. Should we criminalize activity merely because it is associated with crime? Should we ban Harley Davidson motorcycles because they are a symbol associated with organized crime? What’s worse in the case of the niqab is that it is associated with the victim of the alleged abuse. So, this argument of “abuse prevention” implies that we should restrict the rights of victims in order to protect those victims. Doesn’t this just blame the victim? Wouldn’t this just punish the victim further?
It is easy to show that the niqab ban infringes freedom of religion. Under the Charter, “freedom of religion” is given a wide and liberal interpretation. Whether the niqab is a widely-accepted or widely-followed Islamic practice is irrelevant. What matters in the constitutional context is whether a woman sincerely believes that the practice of donning the niqab is connected with the exercise of her spirituality (Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 62).
Clearly, a law which prevents a woman from accessing government services while wearing a niqab imposes a burden which makes it onerous (if not impossible) to comply with one’s sincerely held religious beliefs. The burden is far from trivial, in that it may even jeopardize a woman’s health if she is forced to choose between accessing a doctor and remaining veiled.
Perhaps the best and most obvious precedent for the niqab situation is the Supreme Court’s decision in Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6. In that case, school authorities discovered that a Sikh boy was in possession of a kirpan — a ceremonial dagger — that his sincere religious belief required him to wear at all times. The school board subsequently prohibited the boy from bringing what they considered to be a dangerous weapon to school. Despite the necessity of maintaining a safe environment in schools, the Supreme Court ruled that the prohibition was an infringement of the boy’s freedom of religion. The infringement could not be justified because the prohibition was a disproportionate response to the school’s safety concerns.
We have summarized the portions of the Supreme Court’s decision that would be most relevant to the niqab issue:
In order to demonstrate an infringement of his freedom of religion, Gurbaj Singh does not have to establish that the kirpan is not a weapon. He need only show that his personal and subjective belief in the religious significance of the kirpan is sincere. …
The interference with Gurbaj Singh’s freedom of religion is neither trivial nor insignificant. Forced to choose between leaving his kirpan at home and leaving the public school system, Gurbaj Singh decided to follow his religious convictions and is now attending a private school. The prohibition against wearing his kirpan to school has therefore deprived him of his right to attend a public school. …
The argument that the wearing of kirpans should be prohibited because the kirpan is a symbol of violence and because it sends the message that using force is necessary to assert rights and resolve conflict must fail. Not only is this assertion contradicted by the evidence regarding the symbolic nature of the kirpan, it is also disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism. …
A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. On the other hand, accommodating Gurbaj Singh and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities.
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at paras. 37, 40, 71, 79.
Justifiable Limits on Religion
In order for a law to justifiably limit freedom of religion, the law must be aimed at achieving a pressing and substantial government objective. The law must be rationally connected to achieving that objective. In addition, the encroachment upon freedom of religion must be proportionate to that objective. In other words, the law must not impair rights any more than is necessary to achieve the government’s purpose.
Before we conclude, we’d like to address whether the Bill is aimed at a pressing and substantial objective and whether it facilitates reasonable accommodation. The closest that Bill 94 ever gets to being a reasonable and constitutional law is in dealing with certain public services that absolutely necessitate the presentation of a face for practical or legal reasons. For example, there is a need to reveal one’s face on government photo ID. In areas other than this, Bill 94 is unjustifiable because it is incredibly overbroad; for instance, by preventing all government employees from wearing the veil.
But in these limited areas, such as the creation of certain vital government documents like drivers’ licences, Bill 94 still fails. By framing “reasonable accommodation” in terms of “identification, security and communication;” by putting discretion in the hands of those that administrate these public services; and by articulating the new policy as “Two words: Uncovered face,” Premier Charest has made it perfectly clear that the government will not use means which minimally impair the rights of niqab-wearers.
Fortunately, Québéc has a role model for accommodation right next door:
Accommodations are made for women in niqabs, said Geetika Bhardwaj, senior communications advisor to Ontario’s Government Services Minister Harinder Takhar.
Women can go into an interview room and have an identification photo taken by a female staff member. Or, a picture can be taken in a private location by a female agent. “If there is not a private interview room or a private location, a screen can be erected in order to obscure the photo subject from public view,” Bhardwaj said.
And, in the Toronto area, health-care appointments can be made after hours, a system that will soon be extended across the province and will include health cards and driver’s licences.
In other words, simple solutions which accommodate niqab-wearers and create no “undue hardship” on the government abound. But it’s obvious that Bill 94 isn’t about accommodation. Bill 94 is about stifling a particular religious practice that the majority of Québécois disagree with.
The niqab issue raises fundamental questions about religion, expression, equality, and the limits of those freedoms. To us, the issue boils down to tyranny of the majority on the one hand versus constitutionalism and the rule of law on the other.
Whatever we may think about the merits of donning the niqab, we hope that Québéc decides not to enact this draft law. We encourage you to respectfully share your thoughts with us and other readers. Or better yet, to share a baguette, a bottle of wine and this subject of national importance at your next dinner party.