May 12, 2010
By Beverley Baines, Professor of Law and Head, Gender Studies Department, Queen’s University, Kingston, Ontario
Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions, was introduced in the Quebec Legislative Assembly on March 24, 2010, by Justice Minister Kathleen Weil to promote “the right to equality between women and men and the principle of religious neutrality of the State”. This Bill has become a cause célèbre because it requires Muslim women who wear the niqab to “show their face during the delivery of [government] services”, denying them accommodation “if reasons of security, communication, or identification warrant it” (s. 6). Quebec’s demand that women uncover their faces is tantamount to a demand for formal equality because it requires women (faces covered) to be the same as men (bare-faced).
Formal equality is not the prevailing interpretation of the guarantee of equality rights in s. 15 of the Canadian Charter of Rights and Freedoms, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11. From its earliest equality rights decision in Andrews v Law Society of British Columbia,  1 S.C.R 143, to its most recent decision in R v Kapp, 2008 SCC 41, the Supreme Court of Canada has consistently expressed a preference for substantive equality rather than formal equality. However proponents of Bill 94 might invoke s. 50.1, the new sex equality provision in Quebec’s Charter of Human Rights and Freedoms, R.S.Q. c. C-12. When Quebec added s. 50.1 during the 2007-08 Bouchard-Taylor Commission inquiry into reasonable accommodation, the debate focused mainly on whether it created a hierarchy of rights, not on whether it subscribed to substantive or formal equality (see: Louise Langevin, “‘We-Sisters’ and the Rights of Women to Equality: Analysis of Dissenting Opinions Surrounding the Enactment of Bill 63 Amending the Charter of Human Rights and Freedoms” (2009), 21 CJWL/RFD 353-73). Were the Supreme Court of Canada to adopt formal equality to interpret s. 50.1, the Justices would also have to decide which Charter – Quebec’s or Canada’s – and which interpretation of equality – formal or substantive – apply to Bill 94.
But I get ahead of myself. 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.
The Conventional Charter Scenario
(i) The conventional Charter scenario begins by asking what right or rights in the Canadian Charter are violated when the process of reasonable accommodation is denied to a woman who has been excluded from delivering or receiving a government service in Quebec because her face is covered by the niqab? There are three possibilities: freedom of conscience and religion in s. 2(a); freedom of thought, belief, opinion and expression in s. 2(b); and the rights to liberty and security of the person in s. 7. Interestingly, virtually no one fails to sustain their claim for any of these freedoms and liberties, most likely because they are perceived as first generation rights, rights we imagine we had even before the Canadian Charter was adopted.
To claim freedom of religion, one need only show “sincerity of belief” (Syndicat Northcrest v Amselem, 2004 SCC 47); it is irrelevant whether the niqab is required by the Koran (see: Carissima Mathen, “Anti-niqab Laws: Quebec wrestles with boundaries on religious accommodation” The Lawyers Weekly, 16 April 2010, 9-10). To claim freedom of expression, one need only show the activity “attempts to convey meaning …. however unpopular, distasteful or contrary to the mainstream” (Irwin Toy Ltd. v Quebec,  1 SCR 927); it is irrelevant whether the niqab “is more likely to be a symbol of a belief in separateness of men and women, restricting superfluous social interaction between them, than one of inferiority” (see: I. Hall, Response # 5, 15 April 2010 to James Gotowiec, “Is a ban on the niqab a Charter problem?” The Court, Osgoode Hall Law School, York University, 13 April 2010).
To make a s. 7 claim to liberty, one need only show that the law forecloses making “fundamental personal choices” (Blencoe v British Columbia, 2000 SCC 44); it is not necessary to show the law physically restrains women, although the impact of the ban may very well be to physically confine niqab-wearing women to their homes. Or, to make another s. 7 claim, this time to security of the person, one need only show the law restricts access to, for example, medical treatment causing unnecessary pain and stress (Chaoulli v Quebec, 2005 SCC 35) or that the niqab ban precludes a woman’s control over her body (Rodriguez v British Columbia,  3 SCR 519). With respect to both section 7 claims, it must also be shown that the deprivations are not consistent with the principles of fundamental justice. It should be possible to rely on the early precedent set by R. v. Morgentaler,  1 SCR 30, a case in which the requirement of securing the approval of the therapeutic abortion committee caused delays that increased the health risks to women. In the case of the niqab ban, any refusal to deliver services by police, fire, medical and educational personnel might involve delays that become life-threatening, thereby not comporting with the principles of fundamental justice.
In the conventional scenario, therefore, a woman challenging Bill 94 should not have any difficulty convincing a court that one or more of her rights to freedom of religion, expression, liberty, and security of the person have been infringed by Quebec’s law. However, Charter rights are not absolute. According to s. 1 of the Canadian Charter, rights and freedoms are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Quebec would likely invoke s. 1 to justify infringing any and all of the rights set out above.
(ii) Can Quebec meet the four tests set out in R. v Oakes,  1 SCR 103, to invoke s. 1 successfully? Quebec must show that the objective of Bill 94 is sufficiently important to warrant limiting a constitutional right; that the measures used in Bill 94 are rationally connected to this objective; that these measures minimally impair the rights and freedoms in question; and that the deleterious effects of Bill 94 are not disproportionate to its salutary effects. If Quebec’s claim that the objective of Bill 94 is to promote sex equality, even if it promotes only formal equality, is taken at face value, it should be sufficiently important to meet the first criterion of the Oakes test. However, it is precisely because sex equality is such an important objective that neither the rational connection nor the minimal impairment tests can be met.
The measures used in Bill 94 give bureaucrats the absolute discretion to invoke reasons of security, identification and communication to deny reasonable accommodation to women who wear the niqab in Quebec. Since there is no evidence that all niqab-wearing women pose security and identification problems, this blanket denial of reasonable accommodation is over-inclusive. Moreover, given the objective of sex equality, the measures are also under-inclusive because they do not deny reasonable accommodation to terrorists, bank robbers, and other trouble makers who are males with their faces covered. In sum, there is no rational connection between denying the process of reasonable accommodation to niqab-wearing women and promoting their sex equality.
Similarly, if the objective is sex equality, would it not be more minimally impairing to respect a woman’s choice by providing an alternative to removing the niqab as for example by having another woman privately verify whether there are any serious identification or security concerns (see Daniel Haboucha, “What’s wrong with banning the niqab?” Legal Frontiers: McGill’s Blog on International Law, 10 April 2010)? Please note I find the communication rationale spurious because of the disrespect that it gives visually impaired and blind persons. I assume Quebec does not discriminate by hiring only sighted bureaucrats.
Finally, what about the proportionality between valuing sex equality and valuing the various freedoms, whether religious, expressive, etc.? The conventional scenario forces these values into conflict and forces the Court to pick between them. Perhaps the Justices will choose religious freedom as happened in the kirpan case (Multani v Commission scholaire Marguerite-Bourgeoys, 2006 SCC 6) where the choice was between religious freedom and the value of safety in the schools; or perhaps they will choose sex equality as happened in the Jewish religious divorce case (Bruker v Marcovitz, 2007 SCC 54). We will not know for sure until the Court adjudicates a case in which the contest is between the constitutional values of religious freedom and sex equality. Nevertheless, it would be surprising were the Court to value the more disfavoured version of sex equality – viz. formal equality – over the first generation, fundamental freedoms of religion, speech, liberty, and security of the person.
However, Quebec might claim that s. 50.1 was incorporated into the Quebec Charter to establish a hierarchy of rights wherein sex equality, whether formally or substantively interpreted, would always trump all other rights and freedoms. This claim was contested in the debates during the reasonable accommodation hearings held by the Bouchard-Taylor Commission and the legislative committee hearings that preceded the adoption of s. 50.1. When I was asked to speak in support of the proposal to enact s. 50.1 because I had actively supported the addition of s. 28 to the Canadian Charter in 1981, I refused. In the interval both Canada and Quebec have become multicultural, making it no longer (if it ever was) appropriate to construe sex equality as a perpetual trump card. Put differently, in the early 1980s most women were willing to choose sex equality over multiculturalism; today, however, all women should respect the fact that some women choose both multiculturalism and sex equality.
Were the Court to recognize s. 50.1 as a forever trump card, the women who do not want to choose between their right to religious freedom and their right to sex equality (and whom I have labeled elsewhere as “intersectional” feminists – see “Is Constitutionalism Bad for Intersectional Feminists?” (2010) 28 (4) Penn State International Law Review xx (forthcoming) and “Must Feminists Support the Entrenchment of Sex Equality: Lessons from Quebec” in Susan H. Williams, ed., Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge: Cambridge University Press, 2009) 137-156) would be rendered silent, their constitutional citizenship ignored. Moreover, since the equivalent provision in the Canadian Charter, s. 28, has never been recognized as a trump card despite similar aspirations by some of its drafters (see Beverley Baines, “Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation”, (2005) 17 Canadian Journal of Women and the Law/Revue Femmes et Droit 55-80), attributing this status to s. 50.1 would have the effect of re-invigorating the failed Meech Lake Accord wherein Quebec claimed to be a distinct society. To avoid forcing the Court to choose between the sex equality provisions in the Quebec and Canadian Charters (because that makes intersectional feminists second class citizens in Quebec), as well as to avoid having to choose between religious freedom and sex equality (because that completely disfranchises intersectional feminists), I propose to develop a more radical scenario for the constitutional challenge to Bill 94.
The Radical Charter Scenario
(i) In the radical Charter scenario, women who wear the niqab in Quebec would invoke their right to sex equality under either the Canadian or Quebec Charters to challenge the constitutionality of the niqab ban. They might rely solely on the right to sex equality in the Canadian Charter, s. 15 or in the Quebec Charter, s. 50.1. Or, they might use this right in conjunction with one of the freedoms or liberties (e.g. religious freedom and sex equality in the Canadian Charter, ss. 2 and 28).
Making a sex equality claim involves two steps. First, the equality-seekers must show that the law distinguishes between women and men. Even gender neutral laws may distinguish between women and men if, as in the case of Bill 94, the effect of the law falls predominantly if not entirely on women. The second step involves showing the law not only distinguishes between women and men but also discriminates against women. More specifically the equality-seekers must show that denying niqab-wearing women access to the process of reasonable accommodation prejudices and/or stereotypes them (R v Kapp, 2008 SCC 41). Given the prevalence of Islamophobia in Canada and Quebec, it should not be difficult to establish that Bill 94 exacerbates the prejudice and stereotyping faced by Muslim women who wear any form of distinctive clothing in our society. Although the Court has not been receptive to women’s claims for sex equality in the past (see Beverley Baines, “Equality, Comparison, Discrimination, Status” in Fay Faraday, M. Kate Stephenson, and Margaret Denike, eds., The Law Project: Reinvigorating Substantive Equality (Toronto: Irwin Law, 2006) 73-98), the niqab-wearing women might succeed because, unlike the equality seekers in the previous cases, they do not seek economic equality.
(ii) Were the Court to agree that denying reasonable accommodation to niqab-wearing women infringes their right to sex equality, this should foreclose Quebec from relying on sex equality to justify this infringement, just as Canada was precluded from using religious freedom to justify the Lords’ Day Act, R.S.C. 1970, c. L-13, on the very basis on which it was attacked in R. v. Big M Drug Mart Ltd.,  1 SCR 295. In the alternative the Justices would have to choose between sex equality proponents: on one side and speaking from their own experience, the women who claim substantive equality accommodates differential treatment of the sexes; on the other side and paternalistically defining the experience of these women, Quebec dictating the sex neutral assimilation of women to men. Ironically there is no evidence that francophone women in Quebec supported sex neutral legislation during the Canadian Charter debates in the early 1980s or the Meech Lake debates in the late 1980s. Instead, they proclaimed their satisfaction with their distinctive treatment as women in Quebec.
Of course, not all contemporary francophone women in Quebec support Quebec’s decision to ban the niqab without permitting reasonable accommodation. The Simone de Beauvoir Institute has issued a statement that makes their opposition clear. Nor do all Quebecers in general support it, as revealed by the statement issued by the Anglican Diocese of Montreal which also opposes the ban.
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?
An earlier version of this paper was delivered in Kingston, Ontario, on 27 April 2010 at the Panel on Local Perspectives on the Niqab Ban: Interpreting Quebec’s Bill 94 and was inspired by the work of Dr. Dana Olwan.