Banning the Niqab - How Did Our Nation Get Here?

Banning the Niqab - How Did Our Nation Get Here?

Shama Naz, a mother of two young girls who lives in the Montreal suburb of Kirkland, visited the emergency room of the Lakeshore General Hospital last Sunday after her eldest daughter accidentally poked her left eye with a pencil. A native of Pakistan, Naz wears a niqab, a garment worn by some ISLAMIC women that covers the entire face save for the eyes. A few days before, the Quebec government had announced legislation that would force her to remove her niqab to receive any government service; though it isn't yet law, she wondered half-jokingly whether she would be turned away at the hospital.

She wasn't. Her niqab stayed in place until she was able to see a doctor; then, as she has done countless times while writing exams, taking passport pictures and going across international borders, she took it off - without the prompting of the doctor, who happened to be a man. "Law or no law, it's just about common sense," Naz says. "For me, it's never been an issue."

Soon enough, Naz will be compelled by law, not only common sense, to doff her niqab whenever she visits the hospital, goes to school, has her licence renewed, or avails herself of any other service provided or funded by the provincial government. Introduced last week, Bill 94 is the first legislation in North America to place a de facto ban on any religious face coverings in any government building - including within the walls of every government-subsidized high school, CEGEP and university in Quebec.

Quebecers have risen in support of the bill, and in a rare show of national unity rivalling even that seen during the recent Olympics, the rest of the country is largely behind them, according to a recent Angus Reid poll, which found that 95 per cent of Quebecers, and three out of four of non-Quebecers, approved of Bill 94. The issue has brought together the governing Conservatives and the Liberals, both of which were quick to endorse the bill, while even the Bloc Québécois (no friend of the current Quebec government) agreed with certain aspects of the law, albeit tepidly. Even certain Muslim groups praised Bill 94 as an example of moderation.

"Two words: uncovered face," said Quebec Premier Jean CHAREST last week, after tabling Bill 94. "The principle is clear." His national assembly colleagues were even more unequivocal. Cabinet minister Christine St-Pierre called religious face coverings "ambulatory prisons," while Parti Québécois immigration critic Louise Beaudoin said any religious head coverings, not just the niqab or the more restrictive burka, are examples of "submission of women, of regression, and a subjugation of all our freedoms." Bill 94, Beaudoin says, is "anemic." Translation: the bill doesn't go nearly far enough.

Beyond all the rhetoric is an enduring and familiar narrative playing out across much of the Western world: to what extent religion is to be accommodated by the governments of secular societies. In France, the Sarkozy government is attempting to ban the niqab and burka outright, though the spectre of court challenges will likely cause it to back off somewhat. In November, Switzerland voted to ban the construction of new minarets, the turrets that typically adorn the roofs of mosques - a policy several right-wing parties are considering for the entire EU.

In contrast to these radical measures, Weil says, Quebec's bill is a "common sense piece of legislation" - a happy medium between what she calls the "pur et dur secularism of France and the Parti Québécois" and carte blanche for every religious whim and practice in state institutions. The bill doesn't actually mention the niqab or the burka; rather, it mandates that in government institutions, people must, for reasons of "security, communication and identification," show their face during the delivery of services.

In practice, however, there is little doubt whom this bill targets: the handful of Islamic women in Quebec who wear face coverings as a demonstration of modesty, piety and subservience to God - the only religion in which some practitioners still do so. Many Quebec Muslims feel targeted by the Quebec government, and say the scope of the proposed law is disproportionate to the small number of niqab wearers (estimated to be between 24 and 90 in all of Quebec).

The bill is ripe for a Charter challenge because it potentially violates a fundamental freedom of expression. The issue pits two underpinnings of the Charter of Rights, the freedoms of religion and expression, against Quebec society, which has for the better part of 50 years been wary of any religious encroachment on its institutions. It is a test of Quebec's policy of secularism - one that remains the pride of many Quebecers, even though a crucifix has adorned the national assembly walls for nearly 75 years and a giant, illuminated version has overlooked the city of Montreal for nearly a century. But this is also a signal change for a country whose self-image is one of acceptance and tolerance. Twenty years after permitting turbans in the national police force, Canada is now overwhelmingly in favour of saying no to niqabs.

Bill 94 is the latest salvo in a long struggle in Quebec over the rights and obligations of immigrants living within its borders. "Reasonable accommodations" became the catchphrase du jour during the 2007 provincial elections, after the town council of Hérouxville enacted a "code of conduct" for immigrants, which along with the banning of the practices of stoning, burning or circumcising women also forbade religious face coverings in public. Hearings into reasonable accommodations were held across the province, and the resulting report, written by regarded Quebec intellectuals Gérard Bouchard and Charles TAYLOR, put forward several recommendations - including one that police officers, judges and prison guards be forbidden from wearing any religious symbols. The report also confirmed what Bouchard and Taylor had seen over the months of sometimes rancorous public hearings: "religious adjustments have spawned fears about the most valuable heritage of the QUIET REVOLUTION, in particular gender equality and secularism."

Bill 94, Justice Minister Kathleen Weil says, is the Quebec government's first foray into legislating what can and cannot be reasonably accommodated. Weil's timing, you might say, has been impeccable. The bill comes on the heels of the case of Naema Ahmed, an Egyptian-born mother of three who was removed from her government-subsidized French course by an edict from Quebec's immigration minister after several conflicts with the professor over her niqab. As well, Quebec's health insurance board recently put an end to the practice of granting female-only clerks to religious women upon request.

Though Weil insists the bill wasn't cooked up to capitalize on recent incidents ("It's been in the works since last November," she says) the resurgence of reasonable accommodations certainly didn't hurt her cause, and neither have the poll numbers. "There's a sense of relief amongst Quebecers," Weil says. The relief wasn't only felt in Quebec, it seems. Though several papers chided the province for being what Toronto Star columnist Haroon Siddiqui labelled "out of step with the rest of Canada," the overwhelming majority of Canadians outside of Quebec agreed with the spirit of Bill 94, with support highest in Alberta (82 per cent) and Ontario (77 per cent).

Other surveys point to growing concern over how immigrants adapt to Canadian cultural norms. A series of nationwide polls taken for the Montreal-based Association for Canadian Studies over the past three years indicates that one out of two people feel newcomers should be urged to give up customs and traditions and become more like the rest of us, up from 36 per cent in 2007. For Mario Canseco, a vice-president with Angus Reid Public Opinion, the breadth of the consensus suggests a turning point: a moment at which Canadians are reaching the limits of our vaunted self-image as tolerant and inclusive. After years of collisions between institutions and the demands of religious minorities, he says, the public portion of the debate increasingly boils down to matters of basic fairness: why should one group be excused from accepted requirements of security, identification and communication, while another is not?

The sentiment partly stems from fear over changing demographics. Factor in the cold math - Canada will need many more immigrants to sustain itself - and it's a recipe for future controversy. "When you have an influx of people entering the country, and you start having separate ways of dealing with each other, that's when things get interesting," says Canseco. "I think we're at that stage now."

Does that mean we're becoming intolerant? Not necessarily. Canseco believes the Quebec legislation is popular in large part because the Charest government framed it in practical matters like security and identification, rather than attacking the religious tradition behind the niqab. In short, they made it sound necessary. That made it easier for people to support it in good conscience.

What isn't known is whether Canadians really believe these justifications, or whether the real reason for the high approval rating lies in unspoken suspicion of Islamic traditions as they relate to cherished Canadian values such as social order and gender equality. How many women, for example, support the law simply because they believe that face coverings are sexist and retrograde, whatever their roots in Islamic cultures?

Nor can the experts pinpoint the degree to which arguments of "fairness" are playing fig leaf to old-fashioned xenophobia. Jack Jedwab, executive director of the Association for Canadian Studies, has cross-referenced individuals' responses to various poll questions on multiculturalism and found that the less a person likes Muslims, the more likely he is to oppose accommodations for immigrants in general. "It does show there is a risk of stimulating anti-Muslim sentiment with these cases," he says, "even if [political] leaders don't hold those sorts of views." Canadians, Jedwab hastens to add, continue to support the principle of multiculturalism by sizable majorities, unlike populations in some Western European countries.

The question is how long those conditions will hold. A separate poll conducted for the ACS two years ago concluded that the accumulation of reasonable accommodation cases, dating back to the 1990 debate over turbans in the RCMP, has been eroding belief in the notion that multiculturalism can unify through diversity.

In 2001, eight out of 10 Canadians were telling pollsters they thought multiculturalism helped foster Canadians' sense of identity and citizenship. By 2007 - following public uproars over hijabs on the soccer field, kirpans in schools and Muslim prayer sites on university campuses - that number had fallen to 69 per cent. Far from moderating their views once they see accommodations in action, Canadians appear to be getting crankier with each new spat over religious practices. If we still believe in multiculturalism, we believe in a version with limits.

"I detected a long time ago that this bill was going to have consensus across the country," Weil told Maclean's recently. "There's a prudishness in the rest of Canada about talking about these issues. It's very British. Here in Quebec we can talk about them, and we do."

Even among Muslims there is no clear consensus on the niqab and burka question, and the debate rages within their society as well. Most Saudi women wear the veil, for example, while the practice is seen as outmoded and strange in Iran, and the niqab is banned in Egypt. "The debate of whether hands and face should be covered is very old," says Concordia religious studies professor Lynda Clarke. "It dates back to at least the ninth century. There were people who said one should cover one's face and hands, and others who insist that it wasn't only unnecessary but that one shouldn't because it's not what the scriptures said. The same debate goes on today." Quebec's latest position in the debate, though, is "anti-Muslim," she says. "The damage is not to those few people, but to the image of Quebec. It makes this society look uncivil."

Nevertheless, one prominent Muslim group is thrilled with the proposed law. "The issue is about security," says Roksana Nazneen of the Muslim Canadian Congress. "You can't interact with someone who is invisible. We cannot expect our government to provide parallel services to accommodate only a few." (Last October, the MCC called for a pan-Canadian ban of "masks, niqabs and the burka in all public dealings," suggesting such garments were examples of Saudi-inspired Islamic extremism.)

As popular as Bill 94 may be, its true test will be a Charter challenge - something legal experts expect should the bill become law as anticipated. Though Weil says she is "very, very confident that it would withstand a Charter challenge," Bill 94 encroaches on the freedom of religion and equality rights provisions of the Charter, says Robert Leckey, a constitutional law professor at McGill University. "It's an issue between Quebec society and newcomers perceived as different," Leckey says. "The law may seem neutral but it's clear that there's a differential impact on practitioners of a particular religion. Why enact this law to clamp down on only one religious group, or a subset of one religious group?"

A Charter challenge, should one arise, would consider the context in which a law was drafted. In Bill 94's case, Leckey points out, Quebec had just weathered several less-than-congenial encounters with veiled women, including one in which Immigration Minister Yolande James became personally involved. In its attempt to show its Québécois bona fides to the voting public, he says, the government is undermining the validity of its own law.

Indeed, while the proposed law scrupulously avoids any value judgment of the niqab - uncovered faces, it reads, are necessary solely for reasons of security, communication and identification - one of the bill's key backers used decidedly saucier prose when talking about Islamic face coverings. Christine St-Pierre, who made the comment about "ambulatory prisons," is the minister responsible for the status of women and was instrumental in the drafting of Bill 94. She has called niqabs and burkas "an attack on women's rights" and "unacceptable in our society." "The way it's written, the law suggests that uncovered faces are for the good for bureaucracy's sake," Leckey says. "Calling niqabs 'ambulatory prisons' suggests that the law is good for women's sake." (Questioned about her colleague's comments, Weil would only say that St-Pierre "is very, very sensitive to Charter rights.")

Banning the niqab in schools will be particularly problematic, several experts says. In matters of education, the proposed law goes further than Bouchard-Taylor: it would restrict niqabs and burkas for both students and teachers, for instance, while the Bouchard-Taylor report recommended a restriction for professors alone.

Leckey says it's near impossible to make the argument about identification or communication in many of the places where the bill would apply. "You don't ID people in a library or many other government-funded public spaces," he says. "In fact, people go to the library to not communicate, except over their cellphones or with the bar-code machines at the exit."

Of course, the Quebec government could override any unfavourable court ruling simply by invoking the notwithstanding clause, the constitutional tool that gives the provinces a temporary veto over the courts. Quebec used it in 1988 to defend its language rights, and recently threatened to do so again on the issue of French education. Would the province do it again to keep Quebec's face uncovered? "Oh my, we aren't there at all," Weil said. "We have lots and lots of opinions. We really think it's reasonable."

Needless to say, Shama Naz doesn't think the government is being reasonable at all. A graduate of Concordia, she spent years working in a downtown office and never once had a problem over her niqab. She quit to raise her children, and was reconsidering a return to school for another degree - something she won't likely do if the government legislates the removal of her niqab. "This is where I went to school, this is where I work, this is where I got married, this is where I had children," she says. "I was heartbroken and shocked, because I didn't think something like this would happen in Canada, but I've moved on from those emotions to something more constructive."

She may leave Quebec altogether. "I'm not sure of how far this is going to go," she says, alluding to rumours that the hijab, or head covering, is the next bit of cloth to be targeted by the government. She worries about how the decision will affect her daughters, and whether they will be able to wear the niqab - "if they choose to," she adds. "It's very sad, and I don't know if I'm going to be staying in Quebec with all this drama going on."

Certainly, if the polls are any indication, at least some Quebecers would be delighted to see the unrepentant wearers of face and head coverings - people like Naz - leave for good. Others may see it as an unintended but unavoidable consequence. "I wouldn't be happy if some day I find myself in front of a judge who is wearing the hijab," says Beaudoin, the Péquiste hawk. "They say it's their choice but I don't believe it. You know, at the time of slavery there were slaves who didn't want to be freed, who praised their chains, but that's not a reason to not abolish slavery."

Government hearings on the law begin May 18. Between now and then, Weil believes, calmer heads will prevail on both sides, and people, Muslims and non-Muslims alike, will see Bill 94 for what it is: a moderate, progressive and entirely necessary step for Quebec society. "To those people who are worried, I say: don't worry, we are a reasonable society, we are going to have an adult conversation about this," she said. "You'll see, it'll be okay."

See also PREJUDICE AND DISCRIMINATION.

Maclean's April 12, 2010