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Thursday Thinkpiece: McCormack & Bueckert on Religious Dress

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Introduction to the Law and Legal System of Canada
Nancy McCormack and Melanie Bueckert
Toronto: Carswell, 2013

Excerpt chosen by the publisher.

(iv) Religious Dress

Another intersection between law and religion arises with respect to religious dress.28 This issue has come to the forefront primarily in connection with Sikhs and Muslims.

In several Canadian court cases, Sikh men have advanced claims regarding the wearing of turbans and kirpans. Perhaps the most well-known case is that of Bhinder v. Canadian National Railway, which involved the occupational requirement of wearing a hard hat.29 The majority of the Supreme Court of Canada found that C.N.’s requirement that employees wear hardhats was a bonafide occupational requirement, even if it had the effect of discriminating against Sikhs. Similarly, in the more recent case of R. v. Badesha, the court was called upon to balance a Sikh man’s claim to his religious freedom to wear a turban against the health and social policy concerns justifying the mandatory wearing of helmets while riding motorcycles.30

Freedom of religion was subordinated to the value of public safety in that case, and the mandatory helmet law was upheld.

However, safety concerns were not sufficient to outweigh a Sikh student’s right to wear a kirpan (ceremonial dagger) to school in the case of Multani c. Marguerite-Bourgeoys (Commission scolaire).31 In upholding the student’s claim, the Supreme Court emphasized that religious tolerance is important in Canada and that measures that might infringe on religious adherents’ beliefs ought to be tempered, to the extent possible, in order to accommodate the free exercise of those beliefs and religious practices.32

The issue of religious dress has also given rise to legal challenges for Muslim women in Canada. Muslim women who choose to cover their heads or bodies more fully than is customary in the Western world have faced difficulties doing so while participating in a variety of public activities such as playing sports,33 obtaining citizenship,34 voting,35 testifying in court and accessing government services.

The Supreme Court of Canada recently decided a case regarding the ability of a complainant in a sexual assault case to wear a veil over her face while testifying in court.36 At the preliminary inquiry, the judge ordered that she remove her niqab before testifying. On appeal, that order was quashed and the matter was sent back for rehearing. As described by the Ontario Court of Appeal:

The central issue on this appeal arises from an apparent conflict between the constitutional rights of a witness in a criminal proceeding and the constitutional rights of the accused in that same proceeding.37 The witness, N.S., an alleged victim of historical sexual assaults, contends that her religious beliefs dictate that she must wear a veil covering her face, except her eyes, when testifying. The accused, M—-d.S., who is facing serious criminal charges, contends that his right to make full answer and defence requires that he, his counsel and the preliminary inquiry judge be able to see the accuser’s face when she testifies and, in particular, when she is cross-examined.38

In the result, the Supreme Court of Canada crafted a framework intended to reconcile and balance the competing claims, in an effort to provide the accused with a fair trial while remaining sensitive to the complainant’s religious beliefs and practices.39

The province of Quebec appears to be taking a strict approach to face coverings (religiously motivated or otherwise).40 Bill 94, introduced in 2011 but never passed, contained the following controversial provision:

The practice whereby a personnel member of the Administration or an institution and a person to whom services are being provided by the Administration or the institution show their face during the delivery of services is a general practice.

If an accommodation involves an adaptation of that practice and reasons of security, communication or identification warrant it, the accommodation must be denied.41

This law would have applied to both government employees providing services and members of the public receiving government services, including schooling, childcare, health and social services.

Quebec appears to be adopting a form of the French concept of laïcité, or state-sponsored secularism, where there is a strict division between church and state intended to prevent the involvement of religion in state affairs. In France, this notion has evolved into a law banning the wearing of religious dress or symbols in public institutions, such as government offices and public schools.42 Political parties in Quebec argue that the proposed Bill 94 did not go far enough towards the French position; they say the government should impose a complete ban on the wearing of the niqab, hijab and burqa in Quebec.43

The foregoing examples illustrate both the reality that secular laws and religious beliefs regularly intersect and the tension that exists between them in many cases. While courts have struggled to appropriately balance the interests of religious adherents and the general public in cases such as N.S. and Multani, there appears to be an emerging trend within the legislative and executive branches of government federally and in some provinces (particularly Quebec) towards a more stringent approach to religious practices that are, in the view of some, outside the traditional ‘mainstream.’

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27 See, e.g., L. (S.) c. Des Chênes (Commission scolaire), supra note 9 and Syndicat Northcrest c. Amselem, 2004 SCC 47, 2004 CarswellQue 1543, 2004 CarswellQue 1544 (S.C.C.) at para. 51. It is notable that the Amselem case involved a contract of adhesion, whereas the contract in Bruker was found to be freely negotiated between parties with equal bargaining power.
28 See generally “Freedom of Religion and Religious Symbols in the Public Sphere,” online: Library Of Parliament Research Publications <http://www.parl.gc.ca/Content/LOP/ResearchPublications/2011-60-e.htm>.
29 1985 CarswellNat 670, 1985 CarswellNat 144, [1985] 2 S.C.R. 561 (S.C.C.).
30 2008 ONCJ 94, 2008 CarswellOnt 1186 (Ont. C.J.), affirmed 2011 CarswellOnt 4148 (Ont. C.J.).
31 2006 SCC 6, 2006 CarswellQue 1368, 2006 CarswellQue 1369, [2006] 1 S.C.R. 256 (S.C.C.).
32 Nevertheless, the Quebec National Assembly has since banned the wearing of kirpans in that building: http://www.assnat.qc.ca/en/travaux-parlementaires/assemblee-nationale/39-1/journal-debats/20110209/30891.html#_ Toc285107869).
33 A number of difficulties have arisen regarding the wearing of hijabs while playing or refereeing soccer. For instance, the Quebec Soccer Federation has banned the wearing of headscarves. In 2007, an Ottawa team pulled out of a tournament in Laval after one of its players was asked to take off her scarf. In 2011, a Pointe Claire referee for the Lac St. Louis Soccer Association was suspended after she refused to remove her head scarf. However, the Alberta Soccer Association passed a resolution in 2007 allowing players to wear hijabs while playing. Players in Ontario also are allowed to wear head coverings. The International Football Association overturned its previous hijab ban in July 2012.
34 “Feds ban face-covering veils during citizenship oath,” online: CTV http://www.ctv.ca/CTVNews/TopStories/20111212/canada-face-veils-ruls-citizenship-new- canadians-111212/.
35 In 2007, Quebec’s Elections Act was amended to ensure that voters in Quebec elections show their faces to elections officials: R.S.Q. c. E-3.3, ss. 335.2(3) and 337.
36 2012 SCC 72.
37 See generally Ian Dennis, “The Right to Confront Witnesses: Meanings, Myths and Human Rights” (2010) 4 Crim. L. R. 255.
38 R. v. S. (N.), 2010 ONCA 670, 2010 CarswellOnt 7640 (Ont. C.A.), affirmed 2012 CarswellOnt 15763, 2012 CarswellOnt 15764 (S.C.C.) [R v. N.S.].
39 The majority decision was written by McLachlin C.J.C. and supported by three other judges. Justices LeBel and Rothstein dissented, finding that niqabs should not be worn at any stage of criminal trial proceedings. Justice Abella also dissented, but held that unless the appearance of the witness’ face was directly relevant to the case (such as where identity is in issue), she should not be required to remove her niqab.
40 http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-94-39-1.html.
41 S. 6.
42 Turkey has also taken a similar approach, though motivated by much different historical underpinnings.
43 Yosie Saint-Cyr, “Public Forum on Quebec Bill 94 Underway” (20 May 2010), online: Slaw <http://www.slaw.ca/2010/05/20/public-forum-on-quebec-bill-94-underway/>.

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