April 16, 2010
Quebec wrestles with boundaries on religious accommodation
The debate over the niqab in Quebec, and the overwhelmingly positive response to Bill 94, suggests we are about to enter a phase of direct confrontation with religious minorities in Canada.
As a society, Quebec has tended to resist overt religiosity. It has an especially fraught history with religious institutions, and a commitment to a robust secularism (though that commitment may be somewhat inconsistent given the continued presence in the public commons of Christian symbols). In this environment, the choice by an extremely small proportion of Muslim women to don face coverings has engendered vocal opposition.
The most recent dispute began when an Egyptian immigrant sought to take government-sponsored French language classes. She attended classes for months and received some accommodation of her niqab. At some point, it appears that her demands became too much for school; the precise nature of the conflict is in dispute, but it is alleged that she required male students to be positioned to avoid direct visual contact with her.
On learning of the situation Quebec immigration officials took a hard line, ordering her to either remove the covering or withdraw from the class. It cited both pedagogical concerns, and the larger principle that the state cannot endorse differential treatment of the sexes on the basis of religious or cultural beliefs.
Uneasiness with the implications and social message of the niqab is pervasive. It has become common for even those who oppose anything like a "ban on burkas" to first make clear the extent of their personal discomfort with this form of dress. Such discomfort is understandable given that the niqab appears to reflect a blatant practice of gender inequality: a misguided attempt to protect outmoded notions of female chastity that is forced on women through a unique form of community pressure. (Of course, there are numerous women who state that the niqab represents a mere exercise of personal choice.)
There, then, lies the rub: whether to counteract private pressure - and the niqab's negative message - with state coercion. Bill 94, introduced by Quebec Justice Minister Kathleen Weil, enshrines into law a sweeping duty to reveal one's face in order to receive or deliver public services. Any accommodation of this duty must be denied if it would conflict with "security, identification or communication." Premier Jean Charest has described the law as "a symbol of affirmation and respect." It is said to be not about making Quebec "less welcoming," but rather "stressing the values that unite us."
Is Bill 94 constitutional? The choice to don a niqab would seem to be an obvious exercise of the fundamental freedom of conscience and religion
guaranteed in s. 2 of the Charter.
Protection under the Charter entitles a claimant to expect heightened scrutiny against all but the most trivial forms of state interference. Admittedly, the question of what constitutes a merely "trivial" interference may have new life in light of Alberta v. Hutterian Brethren of Wilson Colony,  S.C.J. No. 37. There, a majority of the Supreme Court hinted that the Crown conceded a s. 2(a) violation too readily, perhaps because of the transient nature of the demand (in that case, being photographed in order to obtain a driver's license). If Bill 94 is challenged, Quebec may attempt to make something of this. Yet, the reasoning seems hardly relevant in the case of the niqab-wearer who would now be required to show her face in a host of encounters with (male) state officials of varying duration.
Is the limit imposed on the Charter right reasonable? Life in a large, modern society occasionally demands proof of identification. In this respect, the law's emphasis on "security and identity" will likely pass muster. The focus on "communication," however, is murkier. A piece of cloth over one's mouth is not an insuperable obstacle to communication, and where it is the religious adherent has just as much incentive as the other party to adjust.
It may be, though, that Quebec means something much deeper than literal communication, extending it to communication of gender equality norms. If that is the underlying message of Bill 94, we may well be approaching a watershed moment. To what extent will our society continue to accommodate religious differences that reflect a world view found offensive by a majority of Canadians?
In addressing this question, one hopes that lawmakers and citizens alike are able to distinguish between real and imagined harms, protection and paternalism, and progressive and pernicious legal symbolism.
Carissima Mathen is a law professor at the University of New Brunswick.
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