12.23.2012 12:48 AM

In Sunday’s Sun: veil, void for vagueness

It’s the holiday season, so it’s a good time to ask, should governments make rules for religion?

Never. The state has no business in the blessed places (as well as the bedrooms) of the nation. Full stop.

The separation of church and state isn’t as fundamental in Canada as it is in the United States. As James Madison, the fourth president, put it: “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries.”

The First Amendment to the U.S. Constitution accordingly makes clear Congress “shall make no law” regarding religion.

In Canada, we are (as in many things) different. For starters, the phrase “separation of church and state” isn’t to be found in our Constitution at all. Our anthem requests that God keep our land “glorious and free.” And, until as recently as 1994, a lengthy prayer was read in the House of Commons every day trumpeting the primacy of “our heavenly Father, high and mighty, King of kings, Lord of lords, the only Ruler of princes.”

That aside, most Canadians are uncomfortable with the notion the state should involve itself with religion. So, when Stockwell Day said in April 2000 “it was not possible” to keep religion out of politics — and, earlier, that government standards should be set “by God [and] His Bible” — Canadians were alarmed. They voted accordingly, giving Jean Chretien a bigger majority in 2000 than he had won in 1997.

So what, then, are we to make of Supreme Court of Canada’s niqab ruling on Thursday? In some ways, it was uniquely Canadian — it attempted to strike a compromise, and oozed reasonableness. On the difficult question of whether a Muslim sexual assault victim should be forced to remove her facial veil when testifying against an uncle and cousin who repeatedly violated her when she was a child, the high court was categorically vague.

Ruled the court:

“A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained. Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.”

Get that? They’re against the niqab-wearing, it seems. But then this: “However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable.”

In short, a triumph of Canadian judicial vagueness. We are, after all, the people who apologize when Americans trod on our toes.

Thus, the decision doesn’t really help us much. In all, there were six niqab-related court cases under way in Canada. They ranged from the wearing of veils in polling stations in Quebec, to the requirement of removing them when taking the citizenship oath across Canada. The Supreme Court’s decision, which sought to please everyone, may well end up satisfying no one.

So, prepare yourself for the inevitable: Every kook and bigot with some spare time on his hands may commence litigation against the Sikh’s turban and beard, the Jew’s kippah and the Hasidic Jew’s clothing, the Hindu’s tilak facial markings, the styles favoured by traditional Mennonites and the Amish, or perhaps even the ostentatious display of a nun’s habit. I mean, why not, right? Fair’s fair.

Jews have considerable experience with politicians and judges telling them how to live.

Quebec’s Orthodox Jewish community recently appeared before a Quebec National Assembly committee to lend support to Muslims fighting a bill that would ban the wearing of the Muslim niqab when receiving government services. The Jewish Orthodox Council for Community Relations warned against adopting “hard and fast rules” that could create tensions between citizens.

The Supreme Court of Canada, apparently, didn’t listen to that, or care. So get ready for more trouble.

Oh, and Merry Christmas.


  1. Steve T says:

    I’m not understanding – I thought the SCC ruling related only to wearing the niqab in a courtroom. Is that not the case?

    My feeling is that anywhere that requires the verification of identity – a courtroom, polling station, passport photo, etc. – then the rules of our society trump the religious “freedom” of disguising yourself. If we don’t like it, then remove the requirement altogether – for everyone.

    To me, the SCC decision – even if only for a courtroom – was wrong. The defendent’s right to see his/her accuser, or the plantiff’s right to see the face of a witness, is a fundamental principle of our legal system. The SCC should have had the guts to challenge/overturn the entire principle, if they felt that the times were a-changin’. Otherwise, enforce the rules that we have, for everyone.

  2. Swervin' Merv says:

    Hiding the face has got nothing to do with religion (from what I read about Islam and the Quran/Koran) but is an imported, largely Arabic cultural tradition of limiting the actions of women. (I would be more tolerant if men had to take a turn and hide their faces Tuesdays, Thursdays, and Saturdays.)

    I can choose to remain relatively anonymous on this website (and thus avoid potential threats) but not when I go vote, swear an oath or testify in court. Many of us also think that faces more generally should not be hidden whenever out in public–part of the “social contract” in Canada–even if we don’t wear our names on our foreheads.

    One doesn’t have to stoop to “speak Christian in Canada” to believe that all social values are not valued equally in our country. Coming here should require accepting Charter rights, for example, and the practice of face-to-face engagement.

    • Steve T says:

      Exactly. For good reasons, Sharia law was rejected in Ontario. It had nothing to do with trampling on the freedom of religion. It had everything to do with requiring all residents of Canada abide by the laws and principles that we have decided should rule our country. Either change the laws, or enforce them for everyone.

  3. Kevin says:

    “the Sikh’s turban and beard, the Jew’s kippah and the Hasidic Jew’s clothing, the Hindu’s tilak facial markings, the styles favoured by traditional Mennonites and the Amish, or perhaps even the ostentatious display of a nun’s habit.”

    None of these involve covering up the face excluding the eyes. That is what is at issue here. Your analogy is false.

  4. Merrill Smith says:

    “Any elector who cannot or does not wish to vote at a polling station during an election or referendum may vote using a special ballot. With a special ballot, an elector can vote by mail or in person at the office of any returning officer. If the elector is away from his or her electoral district, inside or outside Canada, he or she can also register to vote with Elections Canada in Ottawa.” Nothing here about needing to show your face to vote.

  5. Lawson says:

    The SCC has erred grievously if they said Islam was a “religion”. Islam is a complete social order where religion is only one part. It also subscribes finance, business, economics, laws, marriage, racism, tribalism, everything, all interpreted by imams through the Koran and edicts of each branch.

    Islam should be thought of as a social order, just as communism was a social order except that Islam incorporates a deity, which is a powerful combination to control the fearful masses.

    The SCC judges are obviously ignorant about Islam when attributing the niqab to religion only.

  6. Mary says:

    Good article. The SCC should have came down on one side or another. Hundreds or thousands of trial court judges will now be called upon to interpret this ‘vague’ ruling. They will not do it well. There will be no uniformity. Fortunately, this issue doesn’t come up too often (yet.)

  7. Bill Jasmine says:

    Seems like freedom of religion totally trumps freedom from religion. Personally, I think hacking off little boys’ foreskins or slicing off little girls’ clitorises is the sick, inhumane, barbaric act of deranged fanatics. Or, subjecting children to the largest, worldwide, network of organized pedophiles is somehow holy? Ironically, I’m the infidel/goy/heretic. And, if you believe the State always gets it right, well that’s a serious delusion too – can I interest in a used cult-of-personality? No science/empiricism, no reason/logic, no history, conscience, intuition or love. Just listen to the priest/imam/rabbi and their State backers.

    Sharia don’t like it
    Rockin’ the Casbah
    Rock the Casbah

  8. dave says:

    Sometimes hard to connect clothing and so on to a person’s spiritual journey…I thought both Rushdie’s Satanic Verses and Monty Python’s Life of Brian suggested fairly well how innocent happenstance could be adopted and interpreted as having deep religious meaning.

    Seems to me, too, that Paul Tillich said something about our religious symbols along the lines of how inportant it was that once a symbol has passed its time as useful to our spiritual lives, that to hang on to them more often than not lead us to say and do things that were the opposite to our spiritual beliefs.

    I have a hard time with the idea that some head gear or face covering or assorted other attachments is of religious importance because patriarch says it is.

    (In this case, I strongly believe that it is important that the judge and jury be able to see all body language, so…heh, heh, heh).

  9. Spiro Davis says:

    Apparently, the Party has abandoned the Quiet Revolution in favour of an anything-goes policy on religion. I have heard many Quebecois women relate how their Mothers told them how the village priest would ask them why they weren’t pregnant – and this is why they oppose the veil so vehemently – religion is often intrusive.

    One could add to the list the Supreme Court rejecting the religious demands of Blackmore’s Bountiful fanatics. The State has intervened in the case of Jehovah’s Witnesses withholding blood transfusions to their children. The Mennonites and other pacifist groups required special handling during World War 2. Germany, Norway have moved towards banning male genital mutilation – an irreversible and barbaric practice. In the context of Orthadox Judaism, the ‘mohel’ places his mouth around the “circumcision” wound and sucks up the blood – this has resulted in the death of many infants who contracted the herpes virus and subsequently died.

    This is a very slippery slope – for example, notorious White Nationalist, William Pierce created the religion “Cosmotheism, what The Southern Poverty Law Center refers to it as a “bogus religion,” to further his radical agenda. Islamists have a similar modus operandi and use religion as a cloak to further their radical agenda of imposing Sharia law on Western societies. Justin Trudeau’s participation in “Reviving the Islamic Spirit,” is reminiscent of David Duke attending the “International Conference to Review the Global Vision of the Holocaust” in Iran. You may wish to look to Stockwell Day as a cautionary tale of what happens to nonconformists. Of course, Canada itself is technically a theocracy – something akin to the Prince Phillip movement – the image of the English Pope is on the money – so yes, we certainly do not have a clear separation of Church and State.

  10. I pine for the day where religion will be recognized as the archaic, backwards practice it always has been, and discussion of how to manage its existence within society will be unneeded.

    That said, if a ballot-caster can be positively identified in ways that don’t involve breaking their weird religious practices, I’ve got no issue with that.

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