Why Québéc Cannot and Should not Ban the Niqab

By: Law is Cool · March 31, 2010 · Filed Under Administrative Law, Civil Rights, Constitutional Law, Criminal Law, Politics, Pop Culture · 22 Comments 

An article jointly written by David Shulman and Lawrence Gridin

Three women wearing niqabLast 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.

Why?

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.

First Principles

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”.

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at paras. 94, 96.

The Niqab

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.

Choices

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.

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para. 122.

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?

Our Constitution

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.

Conclusion

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.

Comments

22 Responses to “Why Québéc Cannot and Should not Ban the Niqab”

  1. Rob on March 31st, 2010 10:36 am

    Thank-you for this insightful analysis. I agree that the bill does not outline a pressing governmental objective that would satisfy a limit on a constitutionally guaranteed freedom, nor does the outright ban constitute a reasonable accommodation to meet that objective.

    What if, as will undoubtedly happen, Muslim groups argue that this law has made it impossible for their cultural/religious practice to survive, and so constitutes an attack on their very ability to practice their beliefs and transmit them to future generations?

    I’m interested in the political question; to what extent do we accommodate minority rights? There are some great Canadian thinkers on the topic, like Kymlicka who says rather eloquently that we accommodate group rights where ever reasonable and whenever they do not infringe upon individual rights. In that sense I think if we were to ban the niqab, more would have to be done to demonstrate that the niqab is an attack on individual expression rather than an example of it. I’m not convinced this is the case however, but I think it should be central to the debate, if the project of Canadian multiculturalism is to be taken seriously.

    Just my $0.02.

  2. David Shulman on March 31st, 2010 4:31 pm

    Hi Rob,

    Thanks for your comment!

    I had Professor Kymlicka for a political philosophy course. I definitely share his vision of multiculturalism and accommodation, at least as far as I can recall I learned it and as you summarized it.

    In this case, although the people who participate in the religious practice can be said to form a “group”–viz., the group of people who wear the niqab–it’s really each of the members’ individual Charter rights that protects them here. As you suggest, the niqab is an example of individual expression.

    Thanks again,
    David

  3. KC on April 1st, 2010 3:33 pm

    I totally agree with you that there is no way this withstands Charter scrutiny.

    Every argument I’ve seen tossed out there (usually by legally uneducated persons) in support of this ban will fall on its face. It doesn’t matter one iota if the niqab is truly a requirement of Islam. What matters is if the person has a sincere belief that it is (and they will be given the benefit of the doubt). The breach of s. 2 is almost a no-brainer.

    Which takes us to s. 1…. no way will the Supreme Court find that secularism and gender equality (as important as they may be) trump the right to wear niqab. If that argument stood up a whole host of religious practices could come under the microscope.

    Secularism is an important value (one of the most important IMHO) but I don’t see the court using is unless 1) the exercise of one person’s religious freedom impinges another person’s charter rights or 2) the state is refusing to provide a positive accomodation but isn’t actively restricting religious observance. I think secularism could be marshalled to fend off (for instance) a demand that the state provide a female employee to identify a niqabi woman, but in the context of actively restricting a religious observance it wont fly.

    Whether gender equality would work would depend on the judge but I can’t see it in this SCC. May have flown with Wilson or L’Heureux-Dube, but this SCC will probably not agree that the cause of gender equality is served by telling women what to do. The circumstances have to be pretty profound before the courts will depart from a ‘liberal’ analysis and engage in the kind of ‘gender egalitarian analysis’ they have in other cases. I dont see those here.

    The strongest legal argument in favour of a ban on niqab’s and burqa’s would be on the basis of security (i.e. there is a legitimate state objective in preventing people from obscuring ones identity in public), but after the Gubaj Singh kirpan case I don’t see that flying. I personally disagreed with that decision but I dont make the law.

    The problem as I see it for Quebec is that they wont be able to rely on the security aspect because 1) its clear from the narrow scope of the ban (i.e. provincial employees and persons interacting with government) that the intention of the legislation had nothing to do with security and 2) even if it squeaked through the door of s. 1 of the Charter, the court very well could find that such legislation would be ultra vires provincial jurisdiction (admittedly I haven’t explored this argument too deeply).

    That said, I wouldnt put it past Quebec to pull out ole’ s. 33. I may not like the religious fundamentalism inherent in the niqab and the burqa but politically I’m reluctant to tell people what to do and legally I can’t see this law going anywhere.

    I do disagree on one point though: I don’t agree that government should be obliged to accomodate niqabi women by having the state providing female employees to confirm identity. I’ve never bought the “undue hardship” test as an appropriate one for the limits of “reasonable accomodation”. We should be able to decline requests that are contrary to other Charter values even if the accomodation could be granted without hardship. I doubt many would be supportive of a fundamentalist Christian demanding that s/he be accomodated by being served by someone who isn’t a homosexual for example. Nor should gender segregationist values be accomodated. It’s one thing to demand that people abandon their religiously-based conceptions of social interactions between genders/races/etc., its quite another to accomodate them.

  4. Lis445 on April 3rd, 2010 7:08 am

    It’s not possible for a country to be expected to accomodate every group’s whims. If they don’t like how things work, they should stay in countries that are supportive of their beliefs.
    If I were to go to their country, I wouldn’t be walking around in a full blown skirt and tank top. Therefore they shouldn’t come here and expect all these priviledges. It’s not how this part of the world works, so get over it.

  5. Lawrence Gridin on April 3rd, 2010 3:08 pm

    Lis445: Actually, legally speaking, that is how it works in this country. If it’s possible to accommodate their religious views without undue hardship, then we have to.

  6. The Classical Liberal on April 3rd, 2010 7:19 pm

    Is it appropriate for the US, France, Belgium and other countries to ban the niqab (the face vail)? YES it is. Behavior in public spaces is not left up to the individual. Even I, a rabid supporter of individual rights, do not claim that. (How interesting though that some leftists / progressives claim differently. We’ll leave that contradiction for another post.)

    Public property is property held in common. Therefore the public, either through referendums or through the legislature, can – AND DO – determine what is and what is not acceptable behavior and attire.

    Furthermore the claim of religious liberty is not applicable. Religious liberty is not an absolute which allows any and all behavior — especially on public lands.

    The burqa and niquab are displays of public behavior. Women need not wear them in private spaces. As such they are legitimate targets of legislation. The only question now is should we? I answer yes to the niqab and no to the burka. Wearing a burka has aspects of political statement as well as religious but that is not a reason to prohibit is. I, after all, consider wearing swastikas, sickle and hammers, che guevara t-shirts to be political statements that are legally, if not morally, acceptable.

    The niquab is not acceptable because it covers the face and hides the identity of the individual. Would we accept this behavior for any other reason? No. Therefore should we allow the niquab? No.

    To those who make the argument that the niquab is worn solely for religious purposes and for that reason alone we ought to allow women to wear the niqab, I respectfully disagree. One the dispute over whether the niqab is fard (religiously required) or not has been going on among Islamic scholars since the earliest centuries of Islam. Second, as mentioned earlier, religious / cultural norms, while important to take under consideration, are not mandates upon society as a large.

  7. maryam qureshi on April 3rd, 2010 9:10 pm

    my name is maryam i am 15 years old and i think that every one has their rights and Canada is called to be a free country. if the Muslim women want to wear the niqab then other people should have no problem with them, they should mind their own business.so i personally think that this is not fair to the Muslim women,and they have every right to wear a niqab.

  8. fatima qureshi on April 3rd, 2010 10:22 pm

    Everyone should be allowed to wear anything they want without having to hide it.No one should mind anyone’s personal business or what they want to wear.Niqabs should be allowed anywhere and everywhere.

  9. Aysha Qureshi on April 3rd, 2010 10:35 pm

    Hi my name s Aysha Qureshi. I think that if the Quebec government doesn’t want Muslim women to wear Niqab they shouldn’t be too strict about it. They shouldn’t judge Muslim women by how they look or what they wear. The Quebec government’s being very unfair and it would be best for all Muslims if they let Muslim women wear Niqab. Muslim women deserve their rights and they should get them NOW!!!!!!!!!!!

  10. fatima on April 3rd, 2010 10:41 pm

    Muslim Women have the right to wear anything they want such as the niqab. Quebec’s government doesn’t have the rights to stop anyone from wearing what they want to. If this keeps going on then why cant we ban french.

  11. Abdullah Qureshi on April 3rd, 2010 10:47 pm

    My name is Abdullah and I don’t agree with the Quebec government. Canada is called a free country, but if the Quebec government doesn’t let Muslim women wear Niqab it shouldn’t be called a free country.

  12. Valerie on April 4th, 2010 4:38 pm

    I may have missed it, but I did not see a discussion of the Civil Code anywhere in this piece. I’m not a lawyer but I know enough about the legal processes in Quebec to know that they share only a few things in common with common law. The issue needs to be examined from both perspectives, in both legal and moral contexts.

    Rather than being an issue of individual versus provincial rights, it seems more like an issue of the Code (ie. Quebec) versus the Charter and the Constitution (ie. the rest of Canada). Historically the Code has always won over the others, so it will be interesting to see how it plays out this time.

    Personally, I’ve always been of the utilitarian/teleological school of thought. Sure, this instance is a tad tedious, but when looking at the Big Picture it’s not as awful as it seems on the surface.

  13. David Shulman on April 4th, 2010 7:42 pm

    Hi Valerie,

    The preamble to the Quebec Civil Code reads,

    The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

    Section 3 of the Quebec Charter of Human Rights and Freedoms reads,

    Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

    But more importantly, here’s the Constitution of Canada (Constitution Act, 1867):

    s. 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

    Freedom of religion and freedom of expression are part of the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada,

    s. 2. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

    So you see, it’s not as though it will come down to the the Charter “versus” the Civil Code, or to striking a balance between the two. The Canadian Charter of Rights and Freedoms is the supreme law and, as Lawrence and I have argued, Bill 94 is directly inconsistent with it.

  14. David Shulman on April 4th, 2010 9:12 pm

    Hi The Classical Liberal,

    I disagree with your comments.

    I’ll start with this one:

    “Public property is property held in common. Therefore the public, either through referendums or through the legislature, can – AND DO – determine what is and what is not acceptable behavior and attire.”

    That is not true. We live in what is called a constitutional democracy. This means that “the people” and their elected representatives do not reign supreme. Laws can be declared unconstitutional by the courts, and they will be if they are inconsistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms. In fact, this isn’t a rare occurrence.

    In case you were wondering who gave the courts that authority (called “judicial review”), the answer is we “the people” did. The history of the Constitution of Canada is long, but it involves a broad, democratic political and social consensus that culminated in 1982. Section 24(1) of the Charter–which, I remind you, is a constitutional provision enacted by the Government of Canada (“the people”)–reads,

    24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

    In England, it is the opposite. England has what is called Parliamentary Supremacy. In theory, they can pass any crazy law they want, and the laws cannot be declared unconstitutional.

    So, in Canada, a law which prohibited The Classical Liberal from remaining in this country would be declared inconsistent with section 6 of the Charter and, consequently, of no force and effect (unconstitutional). But in England, this law would stand until it was repealed by Parliament.

    You make three arguments that the niqab law is valid:

      1. Religious freedom is not absolute.
      2. The law only applies to “public land”.
      3. There is disagreement among religious scholars regarding whether or not the niqab is required.

    Regarding 1 – “Religious freedom is not absolute”

    Yes, you are correct, it is not “absolute.” There are some limitations of that right that can be imposed by section 1 of the Charter. For instance, if I had a sincere religious belief that I believed compelled me to steal, then I could argue that the Criminal Code deprived me of my freedom of religion. However, section 1 of the Charter reads:

    The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    A court would find that the Criminal Code was justified in its limitation of “my freedom to steal” by section 1 of the Charter, since this restriction is a “reasonable limit” in a free and democratic society.

    There is also the “Notwithstanding clause”, which I won’t get into.

    The question is, is Bill 94 a “reasonable limit”? There is a TON of case law on section 1 of the Charter. I’m not going to get into it because Lawrence and I have already covered it, as have many constitutional experts in the press. But the main reason why it is not is because Bill 94 is overbroad, including, for example, all public service employees, and because it does not minimally impair the freedom of religion of the people that it affects.

    You ask a lot of rhetorical questions in your comment and provide many “yes” or “no” answers. What you ought to provide to the public are reasons.

    You write,

    “The niquab is not acceptable because it covers the face and hides the identity of the individual. Would we accept this behavior for any other reason? No. Therefore should we allow the niquab? No.”

    Explain yourself. For instance, I suspect that you often conceal your identity each yeah on Halloween, on “public land” no less. And hockey goalies cover their faces. What about someone who’s had face surgery and has their face covered.

    Society has no problem with these “displays of public behaviour”.

    But according to you, something that “covers the face and hides the identity” is not an “acceptable” “display of public behaviour”. So I can only infer that you don’t think it is acceptable for children to wear costumes on Halloween. I’m sorry…

    And why isn’t the niqab an “acceptable display of public behaviour”? You don’t say. You just say that religious freedom is not absolute. Yes, that is true. What you haven’t explained is why the niqab is beyond the limits of that freedom. I’m left guessing why you believe it is not “acceptable”.

    You use the word “acceptable”, which I take as meaning something like “my personal opinion of how the law and society should be”. While wearing the niqab is not “acceptable” to The Classical Liberal, it is acceptable to many other people.

    The truth is, there’s no law preventing a person from covering their face and walking around town. If they go and try to get a passport, then they might have to take off their Freddie Kruger mask, just as niqab-wearers remove the veil in that situation (and, where it is accommodated by some privacy, without complaint).

    Anyway, on to 2 – “The law only applies to public land, so it’s valid”

    It’s not like the only way a law can be unconstitutional is if it deprives your freedoms when you are on private land. A law like Bill 94, which prevents niqab-wearers from accessing basic, essential public services, is still going to be unconstitutional. We don’t forfeit our constitutional rights the moment we step out into the town square. The courts have even found that we have certain rights, such as freedom of expression (for example, to protest), on quasi-public lands, such as malls (though this area of the law remains unsettled).

    Regarding 3 – “There is disagreement among religious scholars regarding whether or not the niqab is required.”

    So what. The Supreme Court of Canada has held that all that is required to make something a “religious belief” is for it to be a “sincere belief in a belief or practice that has a nexus with religion.” It’s a totally, subjective personal matter, too. If a woman wearing a niqab is asked “Does this matter to you in a religious way?” and she answers “Yes”, then it doesn’t matter one iota what the religious scholars think. They could ALL disagree with her; it wouldn’t change a thing. I think that most people would prefer this. The alternative is for individuals to lose control over whether what is in their head is actually “religious belief” or not to a bunch of strangers. This seems completely wrong to most people, and contrary to the very meaning of spirituality.

    I encourage you, The Classical Liberal, to reply. I’m interested in your reasons.

    I’m also skeptical of your claim that you are a “rabid” supporter of individual rights. I’d like to hear what rights you value most rabidly. It might be interesting to talk about those and relate them to this issue.

    I have no idea what you mean by “How interesting though that some leftists / progressives claim differently. We’ll leave that contradiction for another post.” I’d love to discuss that one.

    Thanks very much for your comments.

    Best,
    David

  15. The Classical Liberal on April 5th, 2010 11:00 am

    Regarding wearing whatever one wants out in public several people made the point that free societies allows one to dress however they feel like. That has never been the case. The lynch pin of individual rights is property rights. Let’s not delve too deeply into this morass for the moment as property rights have been under assault for generations. No one is talking about how you can dress in your home, only how you dress in public property.

    Opposed to the concept of private property is that of public property: the sidewalks, roads, public squares, public buildings and other public lands. No one individual owns this land therefore the citizens, either through their elected representatives or through referendum, determine what behavior is acceptable in these public spaces. Currently we don’t allow nudity, copulation, urination, defecation and other activities on public property.

    Would you say that walking down the street naked MUST be allowed because someone’s religion demanded it? What would you say in response to someone saying “How can this be a free society if you don’t allow me to walk around naked. It’s natural and you don’t have a say in what I do and do not wear?”

    I would respect that person’s desire to walk around naked; tell him that he can walk around naked in his own property but that I, and the rest of society, as co-owners of the public space, have a say in what we do and how we dress in public spaces.

    I think we’ve amply covered the point: “CAN a free society limit how one dresses in public.” We now come to the point of should we prevent the use of the niqab (the face veil).

    There are always issues when we need to weigh the “needs of the society” and the “rights of the individual.” We have determined that the police can ask for your ID / demand that you present an ID; that you may not enter into certain spaces without showing IDs. This applies to everyone at all times. NO exceptions. Religion and culture is not reason enough to make an exception. A photo of a piece of cloth is not an ID. To me this is self-evident. Is it not for you?

    Now that we’ve determined that society can limit how one dresses; and determined that the niqab cannot be worn in some places and at sometimes we come to the question: should we limit it at all times on all public property?

    *I* personally have no issue with a woman walking down the street wearing a niqab provided that the woman in question removes the niqab while in places where IDs are required. However, if it is against the law for me or anyone else to walk around with my face covered than it should apply to ALL. Religion and culture are not reason enough to give an exception.

    Yes, there are times that people may cover their face in public: when it’s very cold outside we cover our faces, but we do remove the covering when indoors. To say that since we can temporarily cover our faces for special purposes (Halloween, hockey goalie, welder, dust masks for construction workers) does not mean that masks can be worn at all times. I think this is a parse too far. Would you allow Klansmen to walk around with their hoods on because welders wear face shields while welding?

  16. The Classical Liberal on April 5th, 2010 12:17 pm

    David Shulman, thank you for taking the time to respond to my post. You wrote:

    That is not true. We live in what is called a constitutional democracy. This means that “the people” and their elected representatives do not reign supreme. Laws can be declared unconstitutional by the courts, and they will be if they are inconsistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms. In fact, this isn’t a rare occurrence.

    You’re absolutely correct. We, thankfully, do not live in a democracy. The laws made by the legislature/referendums must be constitutional. This particular bill may, or may not, be badly written (overbroad) but the concept under discussion here is: “can behavior in public spaces be legislated?” The answer is yes. More particularly the question is: “can attire in public space be legislated?” The answer is yes, again. And finally: “can laws passed for the whole community be ignored or excused for religious or cultural reason.” Again yes, within reasonable limits. And here we are at the grey area, what is, and what is not reasonable.

    I think I covered much of this in the previous post. Let me focus on a particular point. You wrote that:

    The Supreme Court of Canada has held that all that is required to make something a “religious belief” is for it to be a “sincere belief in a belief or practice that has a nexus with religion.” It’s a totally, subjective personal matter, too. If a woman wearing a niqab is asked “Does this matter to you in a religious way?” and she answers “Yes”, then it doesn’t matter one iota what the religious scholars think. They could ALL disagree with her; it wouldn’t change a thing. I think that most people would prefer this. The alternative is for individuals to lose control over whether what is in their head is actually “religious belief” or not to a bunch of strangers. This seems completely wrong to most people, and contrary to the very meaning of spirituality.

    Why limit this to spirituality? Control of ones thought and action is the essence of “individual rights.” This is the reason why private property is the lynchpin to individual rights: because in the eternal “battle” between societal concerns and individual rights we say that you have far greater control over your actions in your private property.

    Rastafarians consider smoking marihuana to be a religious rite. Is marihuana legal? Numerous Native American peoples incorporate psychedelics in their religious rituals. Are they legal? They’re not allowed to consume these drugs even in their own homes, on their own property. Why not?

    The above quote referred to my point that Islamic scholars are in dispute over whether or not the niqab is required. That point is important because if the niqab is not required then wearing the niqab is a personal preference. If it is allowable because of personal preference then why would public nudity not be allowable on the grounds of personal preference?

    The reality of the situation is that societies limit public behavior for all sorts of reasons – including the viewers public discomfort (that’s why public nudity is not permitted). Seeing masked people in public spaces can be discomforting for some people. Is their discomfort of any importance? Yes. Is their discomfort more important than a person’s desire to wear the niqab? No. But whatever answer you come up with must apply to the Nudist as well; not to mention Wiccans, Christians, Jews, Muslims, Buddhists, Sikhs, Hindus, Atheists and all individuals regardless of which groups they may be part of.

  17. David Shulman on April 5th, 2010 1:31 pm

    Hi The Classic Liberal,

    First of all, the laws regarding public nudity are unsettled, but it’s become pretty clear over the past 20 years that non-sexual, non-harmful, non-commercial public nudity is lawful. For instance, streaking at a sporting event will not result in a criminal conviction, or certain displays at Toronto’s Gay Pride Parade. See this article written by a professor at U of T:

    You might think nudity is objective. We know when we’re naked, don’t we? But being nude, for criminal law purposes, is not being naked, it is “being so clad as to offend against public decency or order.”

    People generally don’t walk around nude–not because of any law–but because people generally don’t walk around nude… They are self-conscious, or they don’t want to offend others.

    Second, you’ve repeatedly said that wearing a mask in public is illegal, except on Halloween, sporting events, eight months of the year in the winter time, and so on. As far as I know, it is entirely lawful all the time. There is no list of special circumstances. It’s lawful conduct, period.

    If I’m wrong, I’d like you to show me the law or case that makes this conduct illegal. Also, just as a clarification, it’s not unlawful to wear a mask or a niqab and go to get a passport–you won’t be charged with anything–it’s just that you won’t get a passport!

    Thirdly, you say that property rights are the linchpin of individual rights. This may surprise you. Canada has nothing in its constitution or Charter of Rights guaranteeing property rights. It is famously absent from our constitution. What many consider to be the highlight of the Canadian constitution–our equivalent to “life, liberty and the pursuit of happiness”–is found in section 7 of the Canadian Charter of Rights and Freedoms,

    Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

    We focus on the person, here in Canada, not on what they own. And even though property rights are not the linchpin of our individual rights in Canada, I think that Canadian society, government and the judiciary demonstrate an incredible respect for individual rights on a regular basis–we are one of the world leaders in this regard. So obviously it’s working out for us just fine as is.

    In any case, your public land-private land dichotomy is not as central to this debate as you suggest.

    Here is an article on the issue of the omission of property rights in the Charter:

    This paper provides background information as to why these rights were not earlier included in the Charter. The paper also addresses what is meant by the term “property rights” and the question of how the courts might interpret the term “property” for purposes of the relevant provision if it were included in the Charter.

    Lastly, you write,

    “A photo of a piece of cloth is not an ID. To me this is self-evident. Is it not for you?”

    Women who wear the niqab already remove their veil for government ID. You’re making an issue where there is none. The problem with Bill 94 is that it would require a niqab-wearer to remove her veil just to sit in her class at university, or just to work in some cubicle in the middle of a government office building, etc. Lawrence and I and many news stories have documented all the ways and places the Bill will affect niqab-wearers. I’d like you to comment on those instances. Explain to the public why those limitations are reasonable limits on the constitutional freedom of religion that can be justified in a free and democratic society. That’s right; it’s not enough to merely argue that the Bill is “reasonable”, you must argue that they are “reasonable limitations” on a constitutional right. As a “rabid” supporter of individual rights, you’ll appreciate how serious and important an objective has to be if we are to let it limit an individual’s constitutional rights and freedoms.

    Best,
    David

  18. The Classical Liberal on April 5th, 2010 4:42 pm

    Second, you’ve repeatedly said that wearing a mask in public is illegal, except on Halloween, sporting events, eight months of the year in the winter time, and so on. As far as I know, it is entirely lawful all the time. There is no list of special circumstances. It’s lawful conduct, period.

    OK. I’ll take your word for it. I’m not Canadian. I live south of your borders and masks are not allowed to be worn by in many states.

    I’ll get back to some of the other points as soon as I can.

  19. Johnny on April 7th, 2010 11:06 am

    I understand the article and see the points and where they come from… yet I’m concerned about the niqab in the long term, because religious movements tend to try to get involved into politics, and easily offended by the liberties of others.

    In Montreal’s YMCA the view was obscured with an opaque glass at the request of a synagogue across the alley where some young male students found the state of undress of some exercisers to be a distraction.

    The use of the niqab is not that different from bandaging feet or having white guys wear KKK robes or having a sword… it could have been okay then and there for a group of people, but it’s harmful to the ones around them. It’s a different millennium.

    Canada is about integration, not about enabling people to create small ghettos that preserve everything the way it was back “in the old country”. What’s the point of immigration then if not to adapt to a new place and a new lifestyle?

  20. Malik on April 9th, 2010 2:47 am

    This is a great read. I have a question though and it may appear ignorant. I understand that different legal systems might be to blame but how have the other European countries banned the Niqab? I assume they have similar provisions and securities for freedoms of expression..?

  21. musab on May 16th, 2010 7:01 pm

    This is a great read. I have a question though and it may appear ignorant. I understand that different legal systems might be to blame but how have the other European countries banned the Niqab? I assume they have similar provisions and securities for freedoms of expression..?

  22. Georgetta Severi on January 29th, 2011 8:40 am

    It sounds like you’re making complications yourself by attempting to resolve this problem instead of looking at why
    their is a difficulty inside the very first location

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