Baloney Meter: How meaningful is the Bloc’s promise to ban veiled voting, oath taking?

Notwithstanding public opinion and wedge politics, likely that the experts have it right:

Constitutional law experts believe banning women from wearing veils while taking the citizenship oath or providing public services would almost certainly be struck down by the courts as a violation of religious freedom and equality rights.

“A ban during (the) citizenship oath ceremony is unquestionably unconstitutional,” says University of Waterloo political scientist Emmett Macfarlane, who has written extensively on Supreme Court constitutional rulings.

“I think a ban on front-line public service workers would also be constitutionally problematic, for similar reasons, although a court may entertain arguments relating to job requirements a little more seriously than it would the purely symbolic arguments concerning the oath.”

Ottawa University constitutional law professor Errol Mendes concurs: “If they didn’t use the notwithstanding clause, it would almost certainly be struck down.”

But here’s the tricky bit: the notwithstanding clause can be used to override only some provisions in the Charter of Rights, including religious freedom and equality rights. It cannot be used to override democratic rights, including the right to vote. Since Duceppe’s promised bill would include a ban on veiled voting, he could find the notwithstanding clause would be of no use to him.

“If the adverse effect was on voting rights, which is not covered by sect. 33 (the notwithstanding clause), it would fall,” says Mendes.

Carissima Mathen, another University of Ottawa law professor, agrees: “I think you absolutely could make a separate (democratic rights) argument because the citizen is being deprived of her right to vote.”

If the bill was limited to removal of face coverings for identification purposes before allowing a person to vote, Macfarlane said the courts might find that to be a justified limit on democratic rights.

However, it might be hard to justify requiring citizens voting in Canada to show their faces for identification purposes when Canadians abroad can vote by mail-in ballots – with no way to verify the identities of those who actually mark the ballots.

The Harper government twice flirted with the idea of banning veiled voting but did not ultimately pursue the matter, perhaps due to the constitutional hurdles.

It introduced a government bill in 2007 which was allowed to languish on the order paper. Conservative MP Steven Blaney introduced a private members’ bill on the same subject in 2011, which then-immigration minister Jason Kenney – the same minister who subsequently issued the directive against face coverings at citizenship ceremonies – called “entirely reasonable.” It went nowhere.

Even if the notwithstanding clause did apply to Duceppe’s promised bill, Mathen points out that its use would have to be approved by both the Commons and the Senate, so it’s “not necessarily a slam dunk.”

The Verdict

Strictly speaking, Duceppe’s promise to introduce a bill banning face coverings during voting, citizenship ceremonies and the provision of public services is accurate. He didn’t explicitly say it would be passed or enacted, although that was the obvious implication.

Given the procedural hurdles facing private members’ bills, it’s debatable whether such a bill would ever see the light of day. Were it to be passed, it’s equally debatable whether it would stand up to a charter challenge or whether the government could invoke the notwithstanding clause to get around the charter.

But of course none of this matters as the intent behind both the Conservatives and the Bloc lies more within identity politics than winning legal arguments.

With respect to the public servant issue (where a ban, as Macfarlane indicates, could be justified on the basis of job requirements), the following table, taken from the National Household Survey, shows the representation of religious minorities in all three levels of government:

Public_Administration_-_Religious_Minorities_-_Core_Public_Admin

This table of course only measures religious faith, not the religiosity of followers and the degree to which they request accommodation and/or they wear visible symbols of their faith (e.g., hijab, kippa, turban etc).

Source: Baloney Meter: How meaningful is the Bloc’s promise to ban veiled voting, oath taking? – The Globe and Mail

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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