Some of the claims we hear about the Quebec values charter tend to be quite categorical. Either freedom of religion is the utmost value, never to be limited by government, or else it must always yield before other values, rights or principles, especially that of gender equality.
Canadian law tends to take a balanced approach where rights are concerned. Rights are generally but not absolutely protected, because rights are not absolute. This is the position the Supreme Court of Canada took in a December 2012 case, in which a woman wearing a niqab for religious reasons wanted to testify in court against her two alleged sexual aggressors without removing it.
The accused, however, requested that the court order her to uncover her face while testifying, to ensure effective cross-examination, and to protect their right to make full answer and defence. When she refused, the question arose as to whether her freedom of religion ought to outweigh their right to a fair trial.
The seven judges split into three groups, reflecting a spectrum of opinions that went from full freedom-of-religion protection to none at all.
According to two judges, testifying while wearing a niqab in the courtroom should never be allowed because it conflicts with the nature of Canadian public adversarial trials, and with the foundational values of openness and religious neutrality. The judges also held that wearing the niqab goes against the democratic principle that says the trial process should be open to the public. As a result, freedom of religion should yield when it comes into conflict with the basic tenets of Canadian democracy, such as the constitutional right to a fair trial.
At the other end of the spectrum, one judge felt that a woman whose sincere beliefs are not in question should almost always be allowed to wear her niqab while testifying, lest she should be forced to choose between reporting a crime and following the precepts of her religion. According to that judge, if freedom of religion is to mean anything, it should not yield before fair-trial arguments, especially if cross-examination is not entirely impaired.
And right in the middle, four judges devised a multi-faceted, four-step analytical process designed to help trial judges determine whether, in each particular case, freedom of religion ought to outweigh fair-trial rights.
The majority of the high court, then, believes that any “extreme” approach would be untenable, whether it always requires the witness to remove her niqab, or never does so. This is why the four judges attempted to first find a way to accommodate both fair-trial rights and freedom of religion, recognizing that in certain cases such accommodation will be impossible. In these cases, the court identifies several elements to take into consideration before reaching a decision: the importance of the religious practice to the witness, the actual situation in the courtroom, broader societal harms such as discouraging offence-reporting by niqab-wearing women, the potential harm to the accused’s fair-trial rights, the credibility of the witness, whether her evidence is peripheral or central to the case, etc.
This process ensures that freedom of religion is limited only in justifiable situations, and not, as the court says, “where there is no good reason for the limit.”
It is true that this test is complicated and may prove difficult to apply. But such is the case with most analytical frameworks devised by courts to bring law to life, to bring law to “everyday use.” Court-devised tests are rarely black and white.
So how might this Supreme Court decision affect any validity inquiry into Quebec’s proposed values charter?
The values charter is equivalent to a complete ban, not only of the niqab, but of any sign that “overtly” indicates religious affiliation. And contrary to this Supreme Court case, there is no competing individual right in the balance, at least none that is even close to what fair-trial means in our society. In other words, no “good reason” can be invoked.
Could religious neutrality of the state be a “good reason”? It could be, under a proportionality analysis, provided the state is truly targeted and the means are necessary to achieve the objective. Under our law, universities and hospitals are not the state. Their employees do not represent the government. So there is no rational link between achieving state neutrality and prohibiting nurses, doctors and university professors from wearing these signs. As for the other targeted groups, a proportionality analysis, if it is taken seriously, would require more substance and data than the urban legends that have been (quite shockingly) heard so far. To me, it looks like the charter is a bad remedy in search of a real problem.