The number of Muslims in Canada more than doubled from 1991 to 2001 to 580,000.⁴ This rapid increase in the numbers of the Muslim community has meant a greater recognition of the challenges with women wearing the hijab. Women’s groups and others are expressing concern. Tarek Fatah and Farzana Hassan of the Muslim Canadian Congress decried the movement to make the hijab “a sort of ‘sixth pillar of Islam.’”⁵ They gave an example of a Montreal mosque that posted a warning on its Web site that warned young girls that if they took off their hijab they could be raped, have illegitimate children, and instigate young people to a path of lust. “Muslims,” they argue, “need to stand up to this sort of emotional and religious blackmail by imams who spread the competing agendas of Saudi Arabia and Iran into Canada.”⁶
 

Martin Collacott, a former diplomat, is of the view that Canada has gone too far with its lax immigration policies. He argues that immigrants should sign a formal agreement to live by Canadian “principles and values.” Defining exactly what those principles and values are is not an easy task. However, he thinks they ought to be delineated and put before the newcomers before they arrive. “We’ve now let the thing advance to where people do expect to be able to do a lot of things that I don’t think are wise in terms of having an integrated society. And now we’ve got to start backtracking.”⁷

The province of Quebec has become the country’s lightning rod on the issue of accommodating religious practices. Premier Charest has recently announced that the Quebec Charter (human rights code)⁸ will be amended to ensure that equality rights trump other rights that come into conflict—including religious freedom. If the proposed legislation passes, the preamble of the Quebec Charter will now include the following paragraph:

“Whereas respect for the dignity of human beings, equality of women and men, and recognition of their rights and freedoms constitute the foundation of justice, liberty and peace.”

And there will be added a new section to the Charter: “The rights and freedoms set forth in this charter are guaranteed equally to women and men.”⁹

This legislative initiative was in response to the Quebec Council on the Status of Women call to protect women from discrimination based on claims of religious freedom. The council argued: “The right to equality between women and men ought to be observed under all circumstances and no infringement thereof should take place in the name of freedom of religion.”¹⁰

The proposed changes to the Quebec Charter appear, at first glance, to do little more than restate what the Canadian Charter of Rights and Freedoms already provides.¹¹ It will, of course, be up to the courts to decide whether in fact there will be a hierarchy of rights where gender equality will trump religious freedom claims.


Annie Lessard expressed the following in an editorial in Quebec’s largest English weekly, The Suburban:


 

“The reality is that a state which promotes gender equality must be consistent in its practices and representations. The veiled teacher promoting the values of equality between women and men poses, both at a symbolic and educational level, a conflict of representations. The underlying message, hidden under the Islamic headscarf, is that of women seen as vile and polluted beings taking moral responsibility for keeping men’s purity in check. We cannot, under the guise of respect for cultural differences and religious beliefs, legitimize inequality and endorse, at the symbolic level, archaic representations of women. For our institutions to accommodate, in the name of multiculturalism, the paradigm of subordination of girls and women or archetypal representations of women as seductive temptresses is tantamount to state-endorsed racism.”¹³

According to Beverley Baines, religion is “equality’s nemesis,”¹⁴ and in discussing the threefold strategy that feminist scholars have advanced to combat religion, she states, “I don’t think we fully grasped the threat that the major religions—Christianity, Islam, and Judaism—would pose for women’s equality rights.”¹⁵ The three-part strategy: first, argue in the Supreme Court for the hierarchy of rights—with equality trumping religion when they conflict; second, joint governance of religious practice between the state and religious authorities; and finally, privatizing religion—thereby eliminating religion as an enumerated protected right in the constitution.

Hierarchy of Rights

Current jurisprudence of the Canadian Supreme Court does not allow for one right to trump another. Instead, there is a balancing of all factors in each case—sometimes one interest would take precedence over another in one case but may not in another. Under the proposed hierarchical approach, whenever equality and religion conflict religion must give way to equality. This could be achieved, Baines notes by a re-characterization of the Canadian Charter. The list of enumerated rights such as freedom of religion, conscience, speech, and so on is followed by a later section that states:

“Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”¹⁶

Thus, “both religious and cultural claims should be read as subject to the requirements of the guarantee of equality to women. This recognition of women’s equality rights is a civic or personhood guarantee, not one defined by the particular religious sect.”17

It is not too hard to think of situations in which such interpretation, were it to be adopted by the Canadian Supreme Court, would be problematic. For example, the state could impose “equality” on women though their own personal religious scruples would be against it. We may then be faced with a situation in which the state is unilaterally forcing women to be “free” as defined by the state.
Joint Governance

It is being suggested that religious communities operate jointly with the state in certain agreed upon areas of religious practice. This model would first divide the areas of contention between the religious group and the state (e.g., status and property). Neither the religious group nor the state would have exclusive control over a contested arena that affects individuals as members of the religious group or citizens. Finally, the individual would have the right to turn “to the competing jurisdiction when the original powerholder has failed to provide an adequate remedy.”¹⁸

Again, this is problematic. If a member of the religious community does not have her equality right accepted by the religious community, then she can appeal to the state for redress, forcing the religious community to permit her equality right?! One wonders about such things as religious communities that do not open certain offices (ordination of women?) to women. Even Baines admits that such women “. . . face the real possibility of being shunned by family, friends, and community.”¹⁹ It will necessarily require not only governmental support for such women to be protected, but also that the religious groups themselves would carry out state dictate to change their ways in compliance with whatever remedy is given to the aggrieved woman.
Privatizing Religion

This proposal suggests that since religious communities are private by nature they should not be given any special protections such as found in the Canadian Charter of Rights. The only freedoms would be those granted to other groups, such as expression and association. “In Canada,” Baines argues, “entrenching freedom of religion may have led religious societies to expect more protection for their patriarchal beliefs than is justified in a world that is still striving to recognize and implement women’s equality rights.”Religious communities “have much to answer for” since women cannot be religious leaders such as “priests, cardinals, popes—in Roman Catholicism” nor take on major leadership roles in “most other major religions.”²⁰

The Challenge

The greatest challenge of our modern age is the integration of the practice of religion with secular society. Private practice of religion becomes particularly acute when it interferes with the right of family members to adopt secularism or change religious belief. The religious must come to terms with the fact that family members may choose to live differently from the way they were brought up.

The Western tradition has long held the inalienable right of an individual to choose for themselves what faith or non-faith they will adhere to. Our body polity can never acquiesce to any assertion that seeks to force or compel another to accept a particular religious belief or adopt a religious practice. Especially is this so with the dramatic increase in cultural diversification as a result of the rising tide of immigration from societies that are not amenable to the liberal rights granted individuals in such countries as Canada.

Such an extreme case as the Aqsa one undoubtedly raises the call to limit all religious practice that is deemed to be an affront to women’s equality—even those traditions in the West that have been practiced for centuries (think refusal of women’s ordination). Much further thought must be given about where the boundary lines are to be drawn—it is a delicate balance of competing rights.

Yet there is no mistake that what happened to Aqsa was nothing short of a monstrous crime. Shahina Siddiqui, the president of the Islamic Social Services Association, stated, “There should be zero tolerance for violence of any kind against women or girls.”²¹ True, indeed! “Young Aqsa Parvez’s death cannot be reversed. But in her memory, we can at least challenge those whose message leads to rage and madness.”²²

Barry W. Bussey, a lawyer, writes from Toronto, Canada.

1 www.nationalpost.com/news/story.html?id=162252.
2 Chris Wattie, “Were Clothes Behind Attack on Teenager?” National Post, December 11, 2007, p. A12.
3 Ibid.
4 Terry O’Neill, “Their Women Apart,” Western Standard, December 4, 2006, p. 28.
5Tarek Fatah and Farzana Hassan, “The Deadly Face of Muslim Extremism,” National Post, December 12, 2007, p. A26.
6 Ibid.
7 Ibid., p. 29.
8 Charter of Human Rights and Freedoms (R.S.Q., chapter C-12).
9 www.assnat.qc.ca/eng/38legislature1/Projets-loi/Publics/07-a063.htm— known as Bill 63: An Act to Amend the Charter of Human Rights and Freedoms.
10 Conseil du statut de la femme, Droit à l’égalité entre les femmes et les hommes et la liberté religieuse (“Opinion on the Right to Equality Between Women and Men and Freedom of Religion”) , 2007, p. 9.
11 Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982 (79). Enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, which came into force on April 17, 1982. Section 28 states, “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”
12 Graeme Hamilton, “Giving Gender Equality Priority Called Dangerous,” National Post, October 11, 2007, p. A18.
13 Annie Lessard, “Gender equality: Hierarchy of rights or separating state and faith?” The Suburban, October 17, 2007, found at: http://thesuburban.com/content.jsp?sid=14612663526754441917779744878&ctid=1000002&cnid=1013195
14 Beverley Baines, “Equality’s Nemesis?” Journal of Law and Equality, 5, No. 1 (2006), 57.
15Ibid.
16 Canadian Charter of Rights and Freedoms, Section 28.
17Baines, p. 76.
18Ayelet Shachar, “Religion, State, and the Problem of Gender: New Modes of Citizenship and Governance in Diverse Societies,” McGill Law Journal, 50 (2005) 49 at 72, as quoted by Baines, p. 77.
19 Baines, p. 78.
20Baines, p. 79.
21Chris Wattie, “Dead Girl Was ‘Scared of Her Father’: Friend,” National Post, December 12, 2007, p. A8.
22 Fatah and Hassan, p. A26.