May 18 is the national day of action against Bill 94, the proposed legislation in Quebec, which if approved, would deny essential government services, public employment, educational opportunities, and health care to Muslim women who wear niqab (face veil). A rally has been arranged in Toronto to take place at 1PM at 20 Queen Street W. Other actions, such as contacting MPs, are also urged for that day.
In her essay, Bill 94: Quebec’s Niqab Ban and Sex Equality, Beverley Baines, professor of Law and the head of the Gender Studies Department at Queen’s University, considers the Bill within Constitutional a framework that should, by now, be familiar to all the former first-years who’ll have written very similar case scenarios during their final exams lo these two weeks ago:
If Bill 94 becomes law, a constitutional challenge would begin with the two preliminary issues that are raised in any Charter challenge. First, does the Charter apply to the impugned action? Here the answer is yes because the impugned action is a statute and the Charter applies to legislation. Second, does the party bringing the Charter challenge have standing to proceed, that is, does the party have an interest that is harmed by the law? Again the answer is yes because the party bringing this hypothetical Charter challenge is a woman who has been or is about to be excluded from providing or receiving a government service in Quebec because her face is covered by the niqab. With these preliminaries satisfied, the next steps are to ask: (i) have one or more Charter rights been violated? And if so, (ii) can Quebec justify violating these Charter rights? What follows are two possible Charter scenarios, the first more conventional than the second.
She concludes:
Women seeking to challenge the niqab ban should invoke their right to sex equality to emphasize their belief in the consistency between this right and their reasons for wearing the niqab. Their challenge would force Quebec to fall back on its second or institutional justification – reasons of security, communication, identification – to justify denying reasonable accommodation. If Quebec has any evidence to sustain these reasons, why should it not be produced, contested and evaluated? The failure to manifest transparency suggests this evidence may not be as conclusive as Quebec asserts. Moreover, Quebec needs to explain why other more minimally rights-impairing processes would not be sufficiently responsive to its institutional concerns. Finally, Quebec should articulate how its institutional reasons could possibly trump sex equality, given everything this province claimed about the priority that should be given to sex equality during the drafting of s. 50.1? Does sex equality matter only when Quebec claims to be its primary exponent?
