Ask the CCLA: Do I have to show my face? When?

May 12, 2015

This article is part of Ask the CCLA, a new CCLA resource that allows individuals to submit their civil liberties questions to the CCLA online. We respond to the most interesting and timely questions on this blog periodically. To learn more, read past questions or submit your own, visit the Ask the CCLA page.

Dear CCLA,

I’m a Muslim woman and I receive social assistance to support myself and my daughter.  Part of accessing this funding means that I regularly have to report to a government office and sometimes I need to meet with a caseworker. The last time I went, the man working at the counter told me that he would not help me until I removed my niqab and showed him my full face. I was eventually able to speak to a different representative and was helped as usual, but I felt humiliated and embarrassed, and am worried about this happening again. What can I do?

Dear Reader,

Section 2(a) and (b) of the Canadian Charter of Rights and Freedoms guarantee freedom of religion and freedom of expression, respectively. In addition, all provinces have human rights laws that aim to protect individuals from discrimination on the basis of a number of personal characteristics, including religion or creed.  These laws generally apply to ensure there is no discrimination in the provision of services, in employment, in housing, and in other social areas. 

Generally, a person’s right to express their religious beliefs by wearing a religious article of clothing is protected and should be accommodated. For the purposes of identity and security however, it may sometimes be necessary for a woman to remove her niqab, though significant efforts should be made to ensure that any interference with religious freedom is as minimal as possible. Whether or not asking a woman to remove her niqab is a justified or reasonable restriction of her Charter protected religious freedom depends largely on the purpose of the request and the surrounding context.

Driver’s Licence/Passport Photos

For the purpose of getting a photo taken for a driver’s licence or passport, your full face must be clearly visible and if wearing a head covering, it must not cast any shadows on your face. A woman will have to remove her niqab for identification purposes, but this could be done privately in the presence of women only.

Testifying in Court

In December 2012, the Supreme Court of Canada rendered its decision in the case of R. v. N.S., which considered whether a sexual assault complainant could testify in Court while wearing a niqab for religious reasons.  One of the accused in the case argued that the niqab should not be worn as this would affect the ability of his lawyer to effectively cross-examine the complainant and impair the ability of the judge (and/or jury) to assess her credibility by observing her demeanour. A majority of the Supreme Court ruled that the religious rights of a complainant must be reconciled with an accused’s right to a fair trial.  As such, whether or not a witness will be asked to remove her niqab depends on a case-by-case analysis by the presiding judge. The judge is to take into account a number of factors, such as the nature of the evidence the witness is expected to give and how crucial it is to the case.  While it is encouraging that the majority of the Court recognized the importance of reconciling rights, it remains to be seen how the decision will be applied in practice.  It is likely there will be very few cases where this issue will arise, but there is a concern that, when it does, individuals may be forced to choose between accessing the justice system and staying true to their religious convictions.

Oath of Citizenship Ceremonies

The Federal Court of Canada ruled in February 2015 that the policy requirement for women to remove their niqabs during their oath swearing at Citizenship Ceremonies is unlawful, as it interferes with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath. The Minister of Citizenship and Immigration filed a notice of appeal to challenge this decision at the Federal Court of Appeal and the lower court’s decision is not in effect until the appeal has been decided by the Court.  As a result, women who wish to swear a citizenship oath may not do so with their faces covered.

Finally, if you feel that you have been discriminated against because of your choice to wear a niqab, you can bring a complaint to the Human Rights Commission of your province, or to the Canadian Human Rights Commission if your concern relates to a federal government office.

The Ask the CCLA blog exists to provide useful and general public information on civil liberties issues. It is not legal advice. Everyone’s legal situation is different, and a response on Ask the CCLA may not be appropriate for yours. f you are facing a legal issue, you should consider seeking independent legal advice. You can find a list of legal clinics and other resources to help you here.