The Role of Choice in Women’s Freedom of Religion Claims in Canada
DOI:
https://doi.org/10.1558/rsth.35157Keywords:
freedom of religion, equality rights, R v NS, Bruker v Marcovitz, Ishaq v Canada, choice, niqabAbstract
This essay explores whether religious women’s reliance on choice to ground their rights claims may undermine the success of those claims. Canadian courts have interpreted religious freedom under section 2(a) of the Charter to include a strong element of choice. However, some religious choices have not received protection under section 2(a), nor under the section 15 guarantee of equality, particularly those choices that are seen to be the cause of the claimant’s harm or that cause harm to others. Our analysis centres on a case examining a Muslim woman’s freedom to wear a niqab during citizenship ceremonies, situating this case in the broader context of decisions involving women, religious freedom, equality, and choice. These cases confirm insights from the feminist literature about the relationship between choice, agency and autonomy, individualization, and the public/private dichotomy. We conclude that a de-emphasis on choice may be strategic for religious women’s rights claims.
References
Abrams, Kathryn. 1990. “Ideology and Women’s Choices.” Georgia Law Review 24: 761–801.
Afshar, Haleh. 2008. “Can I See Your Hair? Choice, Agency and Attitudes: The Dilemma of Faith and Feminism for Muslim Women Who Cover.” Ethnic and Racial Studies 31(2): 411–427. https://doi.org/10.1080/01419870701710930
Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, 2009 SCC 37.
Andrew-Gee, Eric. 2015. “Conservatives vow to establish ‘barbaric cultural practices’ tip line.” The Globe and Mail, October 2. http://www.theglobeandmail.com/news/politics/conservatives-vow-to-establish-barbaric-cultural-practices-tip-line/article26640072/
Bakht, Natasha. 2015 “In Your Face: Piercing the Veil of Ignorance About Niqab-Wearing Women.” Social and Legal Studies 24(3): 419–441. https://doi.org/10.1177/0964663914552214
———. 2012. “Veiled Objections: Facing Public Opposition to the Niqab.” In Reasonable Accommodation: Managing Religious Diversity, edited by Lori Beaman, 70–108. Vancouver: University of British Columbia Press.
Berger, Benjamin L. 2008. “Law’s Religion: Rendering Culture.” In Law and Religious Pluralism in Canada, edited by Richard Moon, 264–296. Vancouver: University of British Columbia Press.
Bilge, Sirma. 2010. “Beyond Subordination vs. Resistance: An Intersectional Approach to the Agency of Veiled Muslim Women.” Journal of Intercultural Studies 31: 9–28. https://doi.org/10.1080/07256860903477662
Bruker v. Marcovitz, [2007] S.C.R. 607, 2007 SCC 54
Burke, Kelsey. 2012. “Women’s Agency in Gender-Traditional Religions: A Review of Four Approaches.” Sociology Compass 6(2): 122–133. https://doi.org/10.1111/j.1751-9020.2011.00439.x
Cader, Fathima. 2013. “Made You Look: Niqabs, the Muslim Canadian Congress, and R v. NS.” Windsor Yearbook of Access to Justice 31: 67–93. https://doi.org/10.22329/wyaj.v31i1.4311
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
CBC News. 2015. “Zunera Ishaq, who challenged ban on niqab, takes citizenship oath wearing it.” October 5. http://www.cbc.ca/news/politics/zunera-ishaq-niqab-ban-citizenship-oath-1.3257762
Chase, Steven. 2015. “Niqabs ‘rooted in a culture that is anti-women,’ Harper says.” The Globe and Mail. March 10. http://www.theglobeandmail.com/news/politics/niqabs-rooted-in-a-culture-that-is-anti-women-harper-says/article23395242/
Chung, Andrew. 2010. “Quebec niqab bill would make Muslim women unveil.” March 25. The Toronto Star. https://www.thestar.com/news/canada/2010/03/25/quebec_niqab_bill_would_make_muslim_women_unveil.html
Clarke, Lynda. 2013. Women in Niqab Speak: A Study of the Niqab in Canada. Gananoque, ON: Canadian Council of Muslim Women.
Deckha, Maneesha. 2004. “Is Culture Taboo: Feminism, Intersectionality, and Culture Talk in Law.” Canadian Journal of Women and the Law 16: 14–53.
———. 2007. “(Not) Reproducing the Cultural, Racial and Embodied Other: A Feminist Response to Canada’s Partial Ban on Sex Selection.” 16 UCLA Women’s Law Journal 16: 1–38.
Eid, Paul. 2015. “Balancing Agency, Gender and Race: How Do Muslim Female Teenagers in Québec Negotiate the Social Meanings Embedded in the Hijab?” Ethnic and Racial Studies 38(11): 1902–1917. https://doi.org/10.1080/01419870.2015.1005645
Fine, Sean and Gloria Galloway. 2015. “Ottawa asks for stay on niqab ruling pending Supreme Court appeal.” The Globe and Mail. September 18. http://www.theglobeandmail.com/news/national/ottawa-asking-for-stay-on-citizenship-ceremonies-pending-niqab-appeal/article26421828/.
Fournier, Pascale and Erica See. 2012. “The Naked Face of Secular Exclusion: Bill 94 and the Privatization of Belief.” Windsor Yearbook of Access to Justice 30: 63–76. https://doi.org/10.22329/wyaj.v30i1.4360
Geddes, John. 2015. “Interview: Jason Kenney responds to Justin Trudeau’s speech.” March 10. MacLean’s Magazine. http://www.macleans.ca/uncategorized/interview-jason-kenney-on-justin-trudeaus-speech/
Goodman, Lee-Anne. 2015. “Jason Kenney defends niqab ban at citizenship ceremonies on Twitter.” CBC News. October 17. http://www.cbc.ca/news/politics/jason-kenney-defends-niqab-ban-at-citizenship-ceremonies-on-twitter-1.2803642
Government of Canada. Citizenship Act, RSC 1985, c C-29.
Hoodfar, Homa. 1992. “The Veil in Their Minds and On Our Heads: The Persistence of Colonial Images of Muslim Women.” Resources for Feminist Research 22(3/4): 5–18.
Hong, Caylee. 2011. “Feminists on the Freedom of Religion: Responses to Quebec’s Proposed Bill 94.” Journal of Law & Equality 8: 27–62.
Ishaq v. Canada (Citizenship and Immigration). 2015 FC 156
———. 2015 FCA 194
Kislowicz, Howard. 2012. “Freedom of Religion and Canada’s Commitments to Multiculturalism.” National Journal of Constitutional Law 31: 1–23.
Majury, Diana. 2006. “Women are Themselves to Blame: Choice as a Justification for Unequal Treatment.” In Making Equality Rights Real: Securing Substantive Equality under the Charter, edited by Fay Faraday, Margaret Denike and M. Kate Stephenson, 209–243. Toronto: Irwin Law.
McKeon, Lauren. 2016. “Zunera’s War.” Toronto Life Magazine. March 8. http://torontolife.com/city/toronto-politics/zunera-ishaq-niqab-ban/
Moon, Richard. 2008. “Bruker v. Marcovitz: Divorce and the Marriage of Law and Religion.” The Supreme Court Law Review 42: 37–62.
Narain, Vrinda. 2014. “Taking Culture out of Multiculturalism.” Canadian Journal of Women and the Law 26: 116–152. https://doi.org/10.3138/cjwl.26.1.116
R v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295
R v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41
R v. NS, [2012] 3 S.C.R. 726, 2012 SCC 72
R v. S(M), 2013 ONCJ 209
Razavy, Maryam. 2015. “Saving the Canadian Muslim Woman: The Story of Alternate Dispute Resolution.” Religious Studies and Theology 34(2): 163–183. https://doi.org/10.1558/rsth.v34i2.29229
Ryder, Bruce. 2008. “The Canadian Conception of Equal Religious Citizenship.” In Law and Religious Pluralism in Canada, edited by Richard Moon, 87-109. Vancouver: University of British Columbia Press.
Singh, Jakeet. 2015. “Religious agency and the limits of intersectionality.” Hypatia 30(4): 657–674. https://doi.org/10.1111/hypa.12182
Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47
Women’s Legal Education and Action Fund (LEAF). 2011. Factum of the Intervener in R v. NS. http://www.leaf.ca/wp-content/uploads/2012/12/NSSCC.pd
