niqab – Double Aspect

Can an agency choose not to enforce Bill 21?

Last week, the English Montreal School Board [EMSB] announced that it is refusing to to implement Bill 21, introduced by the Quebec government. The law would ban workers in the public sphere in positions of authority from wearing “religious symbols” while at work. The government, apparently cognizant of the challenges this could raise under the Canadian Charter of Rights and Freedoms, signalled its intention to invoke the notwithstanding clause to immunize its law from constitutional scrutiny by the judiciary.

In pre-emptively declining to implement the law, the EMSB invoked constitutional objections under the Charter against the ban:

Vice-Chair Joe Ortona, who drafted the resolution, said that the EMSB believes this proposed legislation would be contrary to paragraph 2 (a) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom of conscience and freedom of religion and contrary to paragraph 2 (b) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom thought, belief, opinion and expression.

Furthermore Mr. Ortona said that the EMSB believes this proposed legislation would be contrary to subsection 15 (1) of the Canadian Charter of Rights and Freedoms which guarantees that everyone is equal before and under the law and guarantees the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on religion and contrary to section 3 of the Charter of Human Rights and Freedoms which guarantees freedom of conscience, freedom of religion, freedom of opinion, and freedom of expression.

Quite aside from the merits of the issue, there is a legitimate question of administrative law, here: can an administrative agency like a school board, empowered by statute, simply decline to enforce a law that it believes is unconstitutional? More specifically, can the agency decline to enforce the law if the law invokes the notwithstanding clause? Whatever the answer is, should agencies be able to come to their own determinations of constitutional law?

The place to start is probably the Martin and Conway line of cases. The core issues in those cases were the conditions under which an administrative agency can choose not to apply statutory provisions in its enabling statute that it considers to be unconstitutional—and if so, whether there is a power to issue personal remedies under the Charter. So these cases go, if an agency has the express or implied power to decide questions of law under the challenged provision (see Martin, at para 37), then it presumptively has the power to determine questions of constitutional law. The implied inquiry looks to a number of considerations (see Martin at para 41):

Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.

The presumption can be rebutted by the party seeking to dislodge the Charter jurisdictional presumption, by pointing to an express or implied withdrawal of authority to decide constitutional questions: the concern is discerning whether there is an intention to “exclude the Charter, or more broadly, a category of questions of law encompassing the Charter, from the scope of the questions of law to be addressed by the tribunal (Martin, at para 42).

So the question at the outset for the EMSB is whether it has been conferred the ability to decide questions of law, either explicitly or impliedly. The enabling statute for the EMSB is the Education Act. Under s.111 of that statute, the province of Quebec is divided into “two groups of territories,” with one group constituting English school boards, like the EMSB. The EMSB, under the statute, is “a legal person established in the public interest” (s.113). There is at least some reason (even if weak) to believe under the Education Act the EMSB has the power to decide questions of law, but only a limited one pertaining to its particular mission under the Education Act. For example, under the statute, the EMSB has the power to “ensure that the basic school regulation established by the Government is implemented” (s.222) and can exempt students from that basic regulation “[f]or humanitarian reasons or to avoid serious harm to a student” (s.222). Assume for now that these rather vague and limited provisions confer a general power to decide questions of law: that general power, interpreted in light of the text, context, and purpose of the Education Act as it relates to school boards, would probably only relate to the organization of quality educational services (s.207.1), although one could argue that the same concern could apply to the context of Bill 21.

Even if this could be seen as an implicit signal of constitutional jurisdiction under the Education Act, it is a bit orthogonal to the core interpretive question. Martin, the key case on point, says that the real question is whether the EMSB has power to decide questions of law under the challenged provision in its enabling statute (see paras 27-28, 35). But here, there is not only no challenged provision yet, but it is not the EMSB’s enabling statute. This presents two further problems: can agencies issue prophylactic constitutional rulings? And even if they can, can they do so by choosing not to apply a statute that is not their enabling statute?

It would seem odd, in light of the Supreme Court’s cases, to suggest that an administrative agency can prophylactically choose not to apply a law that otherwise applies to it. Administrative agencies are creatures of statute, and so are subject to the statutory conditions that the legislature imposes on them. Under Bill 21, the terms of the statute clearly apply to school boards (see Schedule I, (7)). Short of some dispute arising within the confines of the statutory regime created by the Education Act, there does not seem warrant for the EMSB to go out on a limb and refuse to apply a statute that has yet to have created any particular problems within its statutory jurisdiction. This seems to be what Abella J suggested in Conway, where she concluded that tribunals could “have the authority to resolve constitutional questions that are linked to matters properly before them” (Conway, at para 78).

More important than this issue, though, is the idea that the EMSB can choose not to apply a statute that is not its enabling statute. The main Supreme Court cases dealing with this issue, even the ones that predate Martin, involve the enabling statute of the decision-maker under consideration (Conway, at para 49: “These cases dealt with whether administrative tribunals could decide the constitutionality of the provisions of their own statutory schemes.” Consider the cases on this point: in Cuddy Chicks, the issue was whether the Ontario Labour Relations Board could determine the constitutionality of a provision in the Labour Relations Act. In Martin, the question was whether the Nova Scotia Workers’ Compensation Appeals Tribunal could decide a s.15 Charter claim under the Workers’ Compensation Act and associated regulations. All of these cases involved claims tied to the regime under which the decision-maker was established, with cases “properly before them.” And this makes sense: it would be odd for Parliament to delegate power to an administrative agency, confined by a statutory scheme, to pass on the constitutionality of other statutory provisions that may only tangentially be related to the part of the Education Act (for example) that the EMSB must apply.

Even if none of this were true, the notwithstanding clause effectively limits any independent choice an agency could have about the constitutionality of the statute under which it is invoked. For one, even if one could impute an intention to the legislature that presumptively allows the EMSB to make constitutional determinations, the notwithstanding clause is a good reason to say that the legislature has rebutted that presumption with respect to the particular category of question at issue here: this is the upshot of Martin and Conway. More fundamentally, a use of the notwithstanding clause cannot be legally questioned by any actor in the system, including the judiciary. The EMSB cannot legally second-guess the choice of the provincial government (its master) to insulate legislation from constitutional scrutiny. The invocation of the notwithstanding clause flows down the entire machinery of the state, and whether we like it or not, its use is legally justifiable by the fiat of the legislature.

To my mind, the use of the notwithstanding clause also renders null any arguments that one could make that the EMSB is justified in its prophylactic ruling because of an abstract notion of “Charter values.” Despite the fact that the spectre of Charter values is increasingly being called into question, and the precedential force of cases like Trinity Western should be questioned because of the lack of reasoning on the point (see, embarrassingly for the TWU majority, para 59), the notwithstanding clause is a legislative command that compels executive actors to ignore the Charter when implementing the law in question. There would be no point in invoking the notwithstanding clause if administrative actors could choose to “independently” opine on the constitutionality of laws in the face of it. The lightning rod for a consideration of Charter values is discretion, and the notwithstanding clause neutralizes any discretion at all on the constitutional question.

To my mind, there is little warrant for the EMSB to prophylactically say it will not enforce Bill 21, given its limited statutory domain and the use of the notwithstanding clause. And this is likely how it should be. It is one thing for an administrative agency, when implementing a statute in the context of a concrete dispute, to have to pass on the constitutionality of a statutory provision—in its own statute—in order to resolve the dispute. In that case, there are at least colourable reasons why the agency should have the power to do this: if one believes in the idea that agencies have expertise on matters arising within the confines of their statute, one could say that they could also have expertise on Charter matters arising in relation to that same statute. One could also say that the legislature delegated to the agency the power to make Charter determinations, even through the imperfect proxy of a general power to decide questions of law. These same justifications lose their force when considering statutory provisions outside the enabling statute. While Bill 21 certainly does affect the realm of the EMSB, the EMSB is not conferred a general power to make constitutional determinations arising under other statutes.

Bashing Bill 62

Criticism of Québec’s face-veil ban coming from elsewhere in Canada is neither hypocritical nor disproportionate

In an op-ed in The Globe and Mail that has generated some discussion, at least in Québec, Jean Leclair remonstrates with “English Canadian politicians and journalists” for their criticism of Québec’s recently enacted legislation that could prevent women who wear face veils (and perhaps other people, such as those who wear sunglasses) from taking the bus or accessing any other public services. Prof. Leclair faults the classes that chatter in English for their hypocrisy and for the excesses of their rhetoric. With respect, it is he who is wrong.

Prof. Leclair thinks that English Canadian criticism of the former Bill 62 is hypocritical because the rest of Canada too has its share of racists and of people who support legislation targeting religious minorities. That is no doubt true. But it is no less true that in no province other than Québec has legislation similar to the “Charter of Values” that was proposed by Québec’s previous government, Bill 62, or beefed-up versions of the latter being proposed by both main opposition parties in Québec been enacted. To my knowledge, no provincial political party has made such legislation official policy. More broadly, no provincial political party has attempted to trade on or pander to the racism that undoubtedly exists in Canadian society in the way that all the main parties in Québec have done. The Conservative Party of Canada, in the death throes of the last federal election campaign, tried to do so, and having failed, abandoned the attempt. Prof. Leclair writes as if there is no difference between discriminatory attitudes existing in society and these attitudes being shared, or indulged for partisan purposes, by those in power. This is not so.

Prof. Leclair also thinks that the critics of Bill 62 are hypocrites insofar as they appear to him to celebrate the wearing of niqabs, or at least to be “stigmatizing all people who do not wish to ‘celebrate’ the right of a woman to wear a veil”. “How many” of them, he asks, “would rejoice if their daughter, one day, chose to wear one?” Prof. Leclair does not mention any names, and I am puzzled as to whether anyone actually is celebrating the fact that niqabs are being worn in Canada. What is worthy of celebration is the fact people are free to act in ways of which many, probably a majority, of their fellow citizens disapprove. Prof. Leclair insists that people should be free to criticize the wearing of the face veils without being accused of being racists, and I agree with him so far as this goes. But, once again, there is a difference between insisting that people are free to criticize others’ choices, even religiously-inspired ones, and defending their purported freedom to support or vote for policies that coerce those who make choices they deem wrong. Criticism is a right in a free society; coercion is not.

Prof. Leclair also argues that the criticism of Québec’s anti-veil (and perhaps anti-sunglasses) legislation is overwrought. After all, “Canada’s approach to the regulation of religious symbols and clothing … is not the only legal path followed in the liberal-democratic world”. A number of European countries have banned full-faced veils, and these bans have been upheld by the European Court of Human Rights. This, to prof. Leclair, proves that, though the bans may be wrong ― as he thinks ―, they are not “synonymous with blind racism”. Yet I fail to see how the fact that some countries ― even some democratic countries ― do something should shield that thing from forceful criticism. Admittedly, I do not know whether Prof. Leclair personally has ever criticized, say, the American criminal justice system as barbaric, but plenty of people in Canada and in Europe do not hesitate to do so. Does prof. Leclair think they should all keep mum? For my part, I think that to the extent that human rights involve universal principles, there is nothing inherently untoward in arguing that the interpretation of these principles by another polity, or group of polities, is perverse.

And the European approach to face veils is indeed perverse. Whether or not it proceeds from “blind racism”, as I have argued here, the reasoning of the Strasbourg Court is repressive, and indeed totalitarian. It rests on the premises that the state is entitled to impose conditions on human interaction that the individuals doing the interacting do not wish to be subject to, and that individuals have some kind of obligation to enter into “open interpersonal relations” with others, whether or not they want to do so. This reasoning is incompatible with belief in a free society, where people decide whether they wish to interact with others, and on what terms, so long as they are refraining from using force or fraud and not harming third parties. Prof. Leclair insists that even if the banning face veils is wrong, it is not arbitrarily repressive, as if the state were “regulating such things as baseball caps or miniskirts”. Face veils are associated with oppression against women, and the desire to outlaw them is therefore comprehensible even if misguided. I’m not sure about skirt length requirements, but certainly prohibitions on women joining certain occupations, or working outside the home at all, or voting, were once justified by claims that these activities took away women’s dignity. We have learned not just to politely disagree with such claims, but to reject them out of hand (which, of course, does not mean to shout them down or censor them). I hope that, in due course, we will also learn to reject out of hand claims that the dignity of women requires them to be prevented from dressing in accordance with their religious beliefs.

In my view, then, Prof. Leclair and others who, like him, disagree with Québec’s ban on face veils and proposals to extend this ban are wrong to object to the criticism with which this ban has been received in the rest of the country. This criticism is not made hypocritical by the existence of racist citizens outside Québec, nor is it made disproportionate by the fact that similar bans are regarded as acceptable in Europe. Prof. Leclair and others might view the criticism as an instance of “Québec-bashing”, the application of double standards to their province. Their are mistaken. Not only is there no double standard, as I’ve argued above, but the intensity of the criticism is, at least in part, likely driven by a recognition of the existence of the chauvinist and illiberal tendencies elsewhere in Canada. There might be no need to criticise Québec’s legislation so much if we were certain that it would never be replicated elsewhere. But precisely because there can be no such assurance, it is important that scholars, journalists, and politicians across Canada denounce it for what it is ― a manifestation of bigoted illiberalism.

The Swearing Show

Niqabs at citizenship oath swearing ceremonies are a big deal. Not really a big deal, mind you, because, as Radio-Canada reports, according to Citizenship and Immigration Canada, there have been exactly two women since 2011 who refused to go through with the oath because of the ban on the niqab which the government had illegally decreed. But politically a big deal. Yet while the niqab and the citizenship oath are the hot new celebrity couple of Canadian politics, all the attention is focused on the niqab, even though all that there was to say about it has already been said some time ago, by Emmett Macfarlane and by Tabatha Southey. If there was anything left to add, Andrew Coyne has added it. The oath, for its part, languishes in obscurity. I would like to remedy that.

You might think that focusing on the oath is a waste of time; that it is only a pretext for the Conservatives to score some political points by attacking the infinitesimal minority of Muslim women who wear the niqab. But why was this particular pretext chosen? After all, the same party is apparently uninterested by banning niqabs from the polling stations ― and yet you’d think that this would be at least as much of a bigot-vote-winner as banning them from citizenship oath ceremonies. So I think it is worth asking what is special about the oath.

There are two ways of seeing the citizenship oath. One is presented in the judgments of the Ontario courts that have upheld its reference to the Queen against a constitutional challenge by some anti-Monarchists who refused to swear “true allegiance” to Elizabeth II, her heirs and successors. The persons challenging the oath argued that the Queen symbolized inequality, privilege, and oppression. Not so, held the Superior Court of Justice in McAteer et al. v. Attorney General of Canada, 2013 ONSC 5895: “the oath to the Queen is in fact an oath to a domestic institution that represents egalitarian governance and the rule of law.” [65] For its part, the Court of Appeal for Ontario, in McAteer v. Canada (Attorney General), 2014 ONCA 578, held that the oath represented “a symbolic commitment to our form of government and the unwritten constitutional principle of democracy.” [62]

As I explained in a paper arguing that, contrary to the courts’ findings, the citizenship oath is indeed an unconstitutional violation of freedom of conscience, the other way of seeing the Canadian citizenship oath, as all loyalty oaths, is as an expression of the state’s fear of its new citizens’ disloyalty. I wrote that

if there is an implicit logic that can justify imposing the oath of allegiance on all would-be naturalized citizens, it is that they are all people whose commitment to Canada is doubtful (their decision to seek Canadian citizenship notwithstanding!), if not potential traitors. (158)

Otherwise, why is the oath even necessary? The government and the courts never answered this question (in part, one must admit, because the people challenging the oath did not dare ask it ― they accepted the principle of the oath unquestioningly).

To me at least, the role that the citizenship oath has come to play in the niqab controversy suggests that my jaundiced view of the oath is closer to reality than the courts’ optimistic one. If the oath were about equality, it would not be seen as an opportunity for singling out a minuscule unpopular group for legal retribution and public opprobrium. If it were about the Rule of Law, it would not be the occasion for bending legal procedures and ignoring legal advice in order to score political points. If it were about respecting our form of government, it would not be the scene of a blatant violation of the Canadian Charter of Rights of Freedoms. On the other hand, if what the oath really represents is a fear of the outsiders, of those who are different ― whether they think differently (like the anti-Monarchists) or dress differently (like the women who wear the niqab) ― and who are therefore said to stand against Canadian values and deemed disloyal despite the absence of any evidence of their disloyalty, then it makes a lot of sense for the oath to be treated in these ways.

We would do well, I submit, to ask ourselves again why exactly it is that we need an oath of citizenship. Mr. Coyne writes that “[n]o one else’s life is made the poorer because, somewhere in Canada, a women is swearing allegiance to this country with her face covered.” Nor are anyone’s rights infringed. That is true of course. But the same thing would be true if one simply became a citizen upon having satisfied a citizenship judge that one has met the legal requirements. The theatre of the oath-swearing can be dispensed with. The actors do not even understand their lines, and now we’re fighting over their costumes too. There are other shows in town more deserving of everyone’s time and attention.

Des fois, Boisvert a tort

J’avais beaucoup de respect, de l’admiration même, pour Yves Boisvert. Il est sans doute l’un des observateurs les plus perspicaces et les plus justes du système judiciaire et des enjeux reliés au droit dans les médias traditionnels. Il a fait preuve de sagesse et de respect pour la différence lors du débat sur la Charte de la honte péquiste. Pourtant, ces derniers mois, ces qualités semblent lui faire de plus en plus souvent défaut. J’ai déjà discuté ici de son attaque injustifiée contre les Cours fédérales, dans laquelle il insinuait que certains Québécois ne le sont pas « suffisamment », et de sa critique, tout aussi injustifiée, de l’ « Américanisation » du système judiciaire canadien qui résulterait de la nomination de quelques juges présumés « conservateurs ». Cette tendance à l’intolérance de la différence se confirme, hélas, dans la récente chronique de M. Boisvert dans La Presse+ au sujet du niqab.

M. Boisvert y défend la position du premier ministre Harper qui passe dernièrement son temps à pourfendre les femmes qui portent le niqab à leur prestation du serment de citoyenneté. M. Boisvert est d’avis qu’

[u]n pays n’est pas « islamophobe » parce qu’il dit à ses nouveaux arrivants : le jour très solennel où vous deviendrez citoyens du Canada, vous montrerez votre visage.

Les raisons pour lesquelles M. Boisvert défend cette violation de la liberté religieuse ― et il est bien conscient qu’il s’agit d’une violation, lui qui « ne voi[t] pas comment on pourrait » interdire le port du niqab en public, comme certains pays européens l’ont fait ― ne sont pas exactement limpides. D’une part, pour lui, comme pour le premier ministre, le niqab serait problématique en soi. En cachant le visage d’une femme, dit M. Boisvert, le niqab « abolit son identité publique. Il est issu du fond des âges et promu par la frange combattante de l’islam radical ». Il serait apparenté à ces « pratiques barbares » que le gouvernement n’a de cesse de dénoncer. D’autre part, M. Boisvert semble avoir des préoccupations quant à la sécurité ou à l’identification:

pour témoigner à la cour ou dans une cérémonie de prestation de serment, pour être fonctionnaire, pour demander des services de l’État, on a le droit d’appliquer le « test de l’aéroport ». Montrez-vous, s’il vous plaît.

Or, cette préoccupation est mal-fondée. M. Boisvert reconnaît lui-même que « [l]’identité de la nouvelle citoyenne est évidemment vérifiée avant la prestation de serment », qu’elle porte le niqab ou pas. Il faut donc croire que c’est bien le premier argument, celui voulant que le niqab soit intrinsèquement problématique, qui explique la position de M. Boisvert. Pourtant, si le niqab est réellement une « pratique barbare », il m’est difficile de comprendre pourquoi on l’interdirait dans certaines situations et non dans d’autres. On n’interdit pas le mariage forcé seulement le jour où les parents deviennent citoyens canadiens, n’est-ce pas?

Cependant, au-delà de leur contradiction, ces deux arguments contre le niqab ne découlent tout simplement pas des de leurs prémisses. Le niqab est le fruit d’une « culture antifemmes »? Oui, sans doute. Sauf que comme l’a noté l’excellente Tabatha Southey dans le Globe and Mail,

[i]f women didn’t wear clothes that were “rooted in a culture that is anti-women,” we’d be naked. You can argue that the veil isn’t a choice, that Muslim women wear the niqab only because of cultural pressure and family. These are the only reasons I wear clothes in August.

Le niqab est-il promu par les islamistes radicaux? Oui, sans doute. Et alors? Les islamistes veulent aussi que les hommes portent la barbe. Devons nous raser tous les hipsters du Plateau, pour les dépiter? L’important, me semble-t-il, n’est pas de savoir qui le promeut, mais qui le porte. Et la réponse et cette question n’est pas celle à laquelle MM. Harper et Boisvert voudraient nous faire croire. Par exemple, Zunera Ishaq, la femme à l’origine de la controverse actuelle, qui s’est récemment expliquée dans le Tornto Star, est une diplômée universitaire, impliquée dans communauté et porte le niqab malgré les souhaits de sa famille, et non à cause d’eux. C’est la mépriser que de prétendre la forcer à être libre ― être libre selon la compréhension que s’en font des hommes qui, en fait, cherchent à restreindre sa capacité de faire ses propres choix.

Remarquez, on n’est pas obligé d’être d’accord avec ces choix. Je crois, moi, que même s’il reflète un choix personnel, le niqab n’en est pas moins un symbole funeste. Je n’aime pas le voir. Mme. Ishaq dit que son niqab oblige les gens à aller au-delà des apparences pour interagir avec elle. Peut-être bien, mais c’est un effort supplémentaire que, dans la vie de tous les jours, on n’est pas tenu de faire.

Cela dit, il y a beaucoup de symboles funestes, et plus encore de symboles de mauvais goût, qu’on accepte dans notre société. Personne, à ma connaissance, ne songe à interdire les chandails à l’effigie de Che Guevara ou de Lénine, que ce soit lors de la prestation du serment de citoyenneté ou dans d’autres contextes. Ce sont pourtant, là aussi, des symboles d’une idéologie oppressive, meurtrière et destructrice. Comme avec le niqab, on peut très bien porter un regard désapprobateur sur les personnes qui affichent ces symboles. Or, désapprouver est une chose; interdire en est une autre.

Du reste, la société québécoise est loin de désapprouver tous les symboles de l’oppression. Comme je l’écrivais ici,

[p]ersonne ne s’empresse de renommer les rues Laflèche ou Bourget, disons, partout au Québec, pour ce que les évêques ultramontains ont fait, des décennies durant, à la démocratie. Ni la station de métro nommée en l’honneur de l’auteur de L’Appel de la Race. Oh, et le fameux crucifix installé par Maurice Duplessis, il est toujours à l’Assemblée nationale. Le paysage (symbolique) québécois est parsemé d’éloges d’un passé, pas si lointain, qui n’était pas si différent des fantasmes [des islamistes d’aujourd’hui].

L’indignation collective à laquelle se joint M. Boisvert est donc fort sélective. Elle n’en a rien à foutre de notre passé collectif ultramontain ou des conneries pseudo-révolutionnaires des enfants gâtés de notre bourgeoisie nationale, mais elle se déchaîne à la vue du niqab. Or le trait distinctif de ce symbole n’est pas d’être associé à une idéologie répressive, ce que d’autres symboles sont aussi, mais bien d’être associé à des gens différents de nous.

Facing Justice ― English Version

I wrote last year about the Supreme Court’s decision on whether a witness in a criminal proceeding could testify while wearing a niqab, a full-face veil, R. v. N.S., 2012 SCC 72, [2012] 3 SCR 726. Of course, the questions about balancing trial fairness and freedom of religion which the Court had to confront in that case do not only arise in Canada. An English criminal trial court recently had to confront them too, delivering its decision on the matter in R. v D(R) [2013] EW Misc 13 (CC) yesterday.

One difference between the English and the Canadian cases is that in N.S., it was a witness (namely, the complainant) who asked to testify with her face covered. In D(R) it was the accused. Judge Murphy, who decided D, thought it was an important distinction:

there are different considerations in these instances. For example, the public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the fear that the court process may compromise their religious beliefs and practices. On the other hand, the rights of the defendant in any resulting criminal proceedings must also be protected. So there is a potential for a challenging conflict of competing public interests. A defendant may, of course, be a witness; but this does not define her role in the proceedings. As a defendant, she plays the central role throughout proceedings, and unlike a witness, she is brought before the court under compulsion and does not appear as a matter of choice (par. 8).

Another distinction which Judge Murphy made in discussing N.S. concerns the significance of the right to religious freedom in Canadian law, by virtue of the Canadian Charter of Rights and Freedoms, which he took to be far greater than that of the “qualified” right to freedom of religion under the European Convention on Human Rights. (I think that Judge Murphy is wrong about this. He takes the protection of freedom in s. 2(a) of the Charter to be absolute, because that provision lacks a qualifying clause like the corresponding one of European Convention ― but of course the Charter does have a qualifying clause, albeit a general one, s. 1.)

One element of N.S. that judge Murphy rejects is the preliminary step of inquiring into the sincerity of the accused’s belief that she must wear the niqab. Such an inquiry would be too difficult to undertake, and different results in different cases would lead to “a kind of judicial anarchy” (par. 15). Better to have a general rule that will apply unless the prosecution decides to bring some evidence suggesting that the accused is, in fact, insincere.

These distinctions notwithstanding, Judge Murphy’s understanding of the basic problem facing the court is not very different from that of the majority in N.S. There is a clash of long-standing, fundamental principles: freedom of religion on the one hand, trial fairness on the other. Religious freedom means being able to wear the clothes one’s religion prescribes. Trial fairness means requires the judge, the jury, and counsel to be able to observe the witness who gives evidence, and the accused even when she is not giving evidence.

Judge Murphy’s views on the trial process, however, are similar to (and borrow from) those of Justice Lebel’s concurrence in N.S. A trial is a “communicative” process, and seeing the accused throughout is very important. It would be unfair to all the other participants in the proceedings if they could not observe the accused’s face. Judge Murphy goes further still. He finds that because “[t]he Court may not discriminate between different religious traditions, or between those with a religious belief and those with none,” if a woman wearing the niqab “is entitled to keep her face covered, it becomes impossible for the Court to refuse the same privilege to others, whether or not they hold the same or another religious belief, or none at all” (par. 60). Furthermore, if judges had to accommodate niqab-wearers on the mere assertion of their religious beliefs, they would in effect be deprived of their entitlement to control their courts’ procedures.

Balancing these considerations against the freedom of religion, Judge Murphy concludes that the accused may not wear a niqab while giving evidence, but may do so at other moments of the trial, except when it is necessary to identify her. To be sure, this may mean that some accused will choose not to give evidence, or will experience discomfort while doing so. Giving evidence, if one wishes to, is a right of the accused. However, this right “involves a corresponding duty to submit that evidence to the scrutiny of the jury” (par. 70). While in other cases it is often possible to accommodate religious beliefs, it would be too much of a strain, and indeed an impairment of rights, to arrange for trials of niqab-wearers to involve only women (as judges, jurors, and counsel).

As I said in my comments on N.S., I am more comfortable with the case-by-case approach taken by the majority in that case than with a bright-line rule. However, it seems clear enough to me that the majority’s approach will, in reality, far more often than not lead to witnesses being ordered to remove the niqab while giving evidence. The practical difference between the N.S. approach and the one taken in D is thus likely to be very minor.

What I don’t like in Judge Murphy’s reasons are his comments on discrimination and the need to have the same rule apply to all. Of course the law should not discriminate between different religions. But to accommodate a peculiar duty that the members of one faith have is not to make them a special favour; an accommodation made on account of such a duty need not be extended to those who have no such duty. The fact that a Sikh boy has the right to wear a kirpan to school does not mean that others ought to be able to bring knives, which they are not compelled to do by their conscience. The fact that a woman who feels in conscience bound to wear the niqab may (sometimes) do so in court need not mean allowing others to wear a mask. Of course, these differences mean that an inquiry into the sincerity of a belief is sometimes necessary (though often sincerity will be admitted by all parties), which is another point where Judge Murphy, in my view, goes wrong.

In any case, despite these problems, his opinion is thoughtful, and a useful read for those interested in the topic of religious accommodation.

Facing Justice

In a decision delivered this morning, R. v. N.S., 2012 SCC 72, the Supreme Court has ruled that the rights of a witness who, for sincere religious reasons, wishes to testify with her face covered and those of an accused against whom she testifies must be balanced on a case-by-case basis, eschewing a bright-line rule, though suggesting that in doubt the accused’s right to a fair trial prevails and militates in favour of an order that the witness remove the face covering. (If you want a less convoluted version of this summary, look at media titles: most, including the National Post, the Toronto Star and all the French-language media―Radio-Canada, Le Devoir, La Presse, and Le Journal de Montréal―go for something like “Niqab allowed in some cases,” but the CBC and the Globe & Mail go for variations on “Judge can order niqab to be removed.” I wanted to avoid this glass half-empty or half-full problem.)

The appellant, N.S., is due to testify at the trial of two relatives whom she accuses of raping her. She wants to do it while wearing a niqab. The accused say she ought to be ordered to remove it while testifying, because not seeing her face prevents the trier of fact (judge or jury members) from making accurate credibility findings and their lawyers from cross-examining her effectively, thus jeopardizing the fairness of their trial. There are thus fundamental rights involved on both sides, freedom of religion and the right to a fair trial. What gives?

First of all, says Chief Justice McLachlin for the majority, it is important to check whether the witness’s insistence on covering her face is motivated by a sincere belief. The first instance judge in this case did not conduct that inquiry properly, so the rest of the reasons is hypothetical―it only presumes that this first requirement has been satisfied.

The second question to be answered is whether allowing the witness to wear a niqab actually compromises trial fairness in the circumstances. Where the evidence the witness will give is uncontested, that is not the case. When credibility is at issue, however, fairness will be compromised. The Chief Justice rejects the claim of the appellant and some interveners that there is nothing much to be learned from seeing a witness’s face. The common law has always proceeded on the contrary assumption, she points out, and while such assumptions are known to have sometimes resulted from unfounded misconceptions and even myths, they should not be discarded without any evidence that such is the case.

If it finds that both a sincere religious belief and trial fairness are implicated in the circumstances of a case, the court must attempt to reconcile them by accommodating both. However, it may well be that there is no accommodation which upholds both rights to be found.

If so, the rights at stake must be balanced to determine which is to prevail, again, in the circumstances of the case. “The question,” says the Chief Justice, “is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion” (par. 34). The Chief Justice sets out a number of factors for courts to consider. On the side of freedom of religion, they include the degree of impairment which a particular witness’s freedom would suffer if she is ordered to remove the niqab, but also the risk that witnesses will simply refuse to come forward if they cannot comply with their religious obligations and thus crimes―very serious crimes like rape in this case―will go unreported or unpunished. On the side of trial fairness, there is the extent to which credibility is central to the case, the stage of the proceedings, and whether the trier of fact is a judge or a jury. The list, however, is rather tentative, and non-exhaustive.

Finally, the Chief Justice turns to the proposed alternatives to this uncertain balancing―clear rules either allowing or prohibiting the niqab at all times. Always allowing it, she says, undermines trial fairness and increases the risk of wrongful convictions. Always prohibiting it, on the other hand, in the name of making courts religiously neutral spaces, “is inconsistent with Canadian jurisprudence, courtroom practice, and our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible” (par. 60). It infringes religious freedom even when doing so does nothing for trial fairness. And, the Chief Justice points out, it is simply not true that we evacuate religion from the courtroom―witnesses have the option to swear on the Bible, the Koran, etc. The state must be neutral towards religion, but it should not hinder it gratuitously.

The two other opinions urge the adoption of the clear rules that the majority rejects.

While concurring in the disposition of the appeal, Justice Lebel, writing for himself and Justice Rothstein, argues that trial fairness and the openness of courts are too fundamental ever to be compromised. Evidence that might be unchallenged at one stage of the trial could be called in question at the next. Anyway, while special rules departing from ordinary procedures can be put in place in order to facilitate communication between the various actors of a trial, a niqab only impedes it, “on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question” (par. 77).

Justice Abella, dissenting, takes the contrary position. In her view, a witness should always be allowed to wear a niqab, except in cases where identity itself is at issue. Otherwise, while “seeing more of a witness’ facial expressions is better than seeing less” (par. 82), seeing less does not prevent the trier of fact from assessing credibility. Anyway, the law already makes any number of exceptions that allow people to testify in ways that prevent their demeanour from being visible to and assessed by the trier of fact. That a witness must testify with her face open is only a general expectation, not a general rule, while the risk of being required to breach one’s religious duty will deter women from acting as witnesses, and is thus a sign of exclusion of religious minorities.

The contrast of style between the majority, on the one hand, and the concurrence and the dissent is as strong as the substantive difference. The majority’s opinion is rather dry and legalistic. The concurrence and the dissent are thick with talk of values and quite impassioned.

For my part, I think that the majority has it right. There really are two very serious rights at issue here. Justice Lebel’s snide comment about the possible insincerity of niqab-wearers and Justice Abella’s claim that since we already compromise fairness some of the time there is nothing wrong with compromising it some more do not persuade me. Case-by-case balancing―although the Chief Justice’s comments suggest that in practice the balance will be tipped towards trial fairness and thus ordering the witness to remove the niqab― might be frustrating, but I don’t think that there is a better way to resolve the clash of rights.