Philosophy of Constitutional Law

[RW]

Could Canada Ban the Burka?



I got into a debate the other day about the burka and the potential for it to be banned in Canada.  For many, this issue is black and white but for me, it is difficult to reconcile based on the Canadian Charter of Rights and Freedom.  



One of our charter rights is freedom of religion.  Many folks from various religious backgrounds in Canada are free to wear their respective religious garb in public without issue.  Some religious groups have fought laws for the right to wear religious items such as Sikhs being able to forgo wearing helmets while riding motorcycles because of their turbans.



That said, many of us see the Islamic religious garment the burka as an unacceptable covering of women and a sign of oppression.  It is not a garment we readily accept in our society as it covers the face.



The legal philosophical question around banning the burka remains outside of our personal comfort and with our first Charter right which states:



The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.



What limits can we demonstrably justify in a free and democratic society for taking away a person's clothing choice, especially in a religious context?

[Renee]

First of all, Sikh's only ride scooters. If they ride a real motorcycle, their turban unravels in the wind.



Provided laws governing obscenity are not broken, I don't think you can take a person's clothing choice away based solely on western values.



You have to demonstrate that the particular style of dress or article of clothing is detrimental to the welfare and safety of others.  That has to be supported almost completely by statistical probability.

[RW]

I agree with you that there needs to be something that demonstrably justifies the limit in the form of an action or statistics or something more than "it makes me feel uncomfortable".  I'm just wondering if anyone knows of something that would qualify.

[Anonymous]

Could Canada Ban the Burka?

It is not a garment we readily accept in our society as [size=150]it covers the face[/size].

I don't know anything about your First Charter so I can't really do anything but speculate.



Here in the states where we have an ever-growing army of surveillance cameras and a steadily increasing capability to do computerized facial tomography and thus to identify people surveilled by these cameras, and a tendency by much of the population to tolerate these encroachments on personal privacy and other freedoms, I think it is probably only a matter of time before courts may hold that covering the face is intended to defeat these measures and is thus inimical to the society's normal function...and it constitutes a subtle attack on the general welfare.



While I myself do not accept any of that, still I see it coming anyway.



Perhaps this will be the "loophole" if you will, by which the burqa might be outlawed...by setting religious freedom against the public welfare in just this way.

[RW]

Could Canada Ban the Burka?

It is not a garment we readily accept in our society as [size=150]it covers the face[/size].

I don't know anything about your First Charter so I can't really do anything but speculate.

I provided the first Charter rule in the OP.

Here in the states where we have an ever-growing army of surveillance cameras and a steadily increasing capability to do computerized facial tomography and thus to identify people surveilled by these cameras, and a tendency by much of the population to tolerate these encroachments on personal privacy and other freedoms, I think it is probably only a matter of time before courts may hold that covering the face is intended to defeat these measures and is thus inimical to the society's normal function...and it constitutes a subtle attack on the general welfare.

I'd like to make A couple points. First, the burqa came long before these surveillance measures.  To say a face covering that pre-dates cameras is a means of avoiding surveillance is contrary to the purpose for the garb.  The purpose of wearing a burqa is defined as an act of virtue not a means of disguise (an act to conceal one's identity or pretend to be someone else).

Perhaps this will be the "loophole" if you will, by which the burqa might be outlawed...by setting religious freedom against the public welfare in just this way.

What "public welfare" is demonstrably being challenged by a Muslim woman covering her face in public?

[Anonymous]

I provided the first Charter rule in the OP.

Yes, but since I lack the historical and philosophical familiarity I must modestly profess some ignorance, else be called out as a cheeky ferriner.

I'd like to make A couple points. First, the burqa came long before these surveillance measures.  To say a face covering that pre-dates cameras is a means of avoiding surveillance is contrary to the purpose for the garb.  

Perhaps, and for that matter you probably don't permit ex post facto laws just like we don't.  However, I don't think your argument is ironclad if the society is looking for an excuse.

What "public welfare" is demonstrably being challenged by a Muslim woman covering her face in public?

Just as I said, if "public welfare" is defined as the ability of the State to identify people visually then facial coverings will clearly contravene it.



I'm not talking about good logic or fair-minded thinking here.  I'm talking about why the Law is frequently an ass, written by asses.

[RW]

Yes, but since I lack the historical and philosophical familiarity I must modestly profess some ignorance, else be called out as a cheeky ferriner.

Since when would that stop you? hehe

Perhaps, and for that matter you probably don't permit ex post facto laws just like we don't.  However, I don't think your argument is ironclad if the society is looking for an excuse.

I'm looking for that excuse.  Is there one?

Just as I said, if "public welfare" is defined as the ability of the State to identify people visually then facial coverings will clearly contravene it.



I'm not talking about good logic or fair-minded thinking here.  I'm talking about why the Law is frequently an ass, written by asses.

Would that fall under your homeland security laws?

[Bricktop]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

[RW]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

[Anonymous]

What the hell does the burkha have to do with religion, even if you consider Islam a religion. The kranny does not specifically mention the garment. The wearing of a burkha is a Middle Eastern cultural tradition.

[RW]

What the hell does the burkha have to do with religion, even if you consider Islam a religion. The kranny does not specifically mention the garment. The wearing of a burkha is a Middle Eastern cultural tradition.

Religious texts do not need to specifically outline symbols or specific garments for them to be protected under the freedom of religion.  One could also argue the burka would fall under "freedom of thought, belief, opinion and expression..."  



Islam, whether you like it or not, meets the Canadian legal definition of a religion.

[Bricktop]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

[RW]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

Sorry, my point was that our Charter is designed to stay relevant. That's what Section 1 does.  It affords us that flexibility.



Okay, we need to protect citizens.  How does not allowing women in Canada to wear the burka accomplish that?

[RW]

Thought....



Could the argument be made to justify abolishing religion as a whole under Section 1 of the Charter?



The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.



Hrm....

[Bricktop]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

Sorry, my point was that our Charter is designed to stay relevant. That's what Section 1 does.  It affords us that flexibility.



Okay, we need to protect citizens.  How does not allowing women in Canada to wear the burka accomplish that?

The burqha is by its very definition an article of disguise.



There is NO reasonable justification for its use. It serves no purpose other than to conceal the identity of its wearer.



It is unlawful.