The Quebec Liberal government has introduced legislation effective Wednesday of this week which bans facial coverings on all persons employed in the provincial civil service and all persons using government services and provincially funded institutions, such as universities. The new law also applies to municipalities, school boards, public health services, and public transit.

While the law does not specifically reference the wearing of a niqab or burqa, both types of facial coverings, would fall squarely under by this prohibition.

This statute, which will more than likely be challenged by public interest groups, raises fundamental issues of freedom of religion and creed which are protected rights against government intervention. This will have an impact on a number of workplaces across Quebec, and is worthy of examination.

Debates over the wearing of facial coverings have previously arisen in a number of non-workplace contexts, which provides some important insights as to how this current debate may unfold.

Witness in Court

The wearing of facial coverings has previously been considered by the Supreme Court of Canada in its 2012 decision which involved a witness testifying in a criminal case involving allegations of sexual assault.

The witness wished to testify while wearing a niqab. The case hence involved two conflicting values, both protected by the Charter: the right of the accused to a fair trial, and the right of the witness to freedom of religion.

The Court determined that there was no universal yes or no answer to this question.

However, the Court did offer this analysis:

1. The witness must have a sincere belief in the religious practice;
2. The context of the case and the evidence must be considered. If the evidence is critical to the case, it will be important to see the face of the witness to examine credibility. On the opposing end of the scale, the evidence may be non-controversial or not contradicted by other witnesses.
3. The judge must determine if there is any accommodation possible to minimize the harm to the witness. Are there any other reasonable alternatives?
4. Should the first two factors require removal of the facial covering, and no alternative could be found, then there must be a debate on the balancing of the two conflicting values. Consideration must be given to the harm to be suffered by the witness, including the number of people present in the court room. Also the judge must keep in mind societal impact, such as would the decision discourage potential complainants from coming forward to authorities with assertions of criminal or other wrongdoings.
5. The converse of the debate is, of course, the right of the accused to confront his accuser and be assured a fair trial. In this context, the significance of the evidence of the witness is to be reviewed. A further factor in favour of the removal order is whether the liberty of the accused is at risk.

The case was ordered back to the preliminary hearing with these directions.

Oath of Citizenship

A similar issue arose with respect to the need to take the oath of citizenship while wearing a facial covering. In that situation, a woman had removed her facial covering prior to taking the citizenship test but wished to take the oath, which was in a public setting, while wearing her niqab.

The Federal Court upheld her the right to do so, based not on a Charter violation, but because the directive to the citizenship judge allowed for no discretion. The Federal Court of Appeal ultimately upheld the lower court’s decision. The Harper government sought leave to appeal, and the decision was reversed following the change in federal government.

Application to Employment Law

The same issue could very well arise in an employment law civil case. Certainly there will be no issue as to the liberty of a participant, but the situations and decisions above will be instructive.

A workplace investigator would likely not be able to insist on such a removal, nor could a policy document mandate this for such a purpose.

An employer in Ontario will not be able to prohibit the wearing of similar facial coverings in the workplace. There may be rare examples where the need to provide facial exposure would be essential to the duties of the position, one which could not be accommodated without undue hardship.

Workplace Religious Tolerance Requires Advice

The law on this subject is not straightforward. If there is a workplace issue involving religious issues, it is important to obtain legal advice quickly from competent employment law counsel.

If you are an employee wondering about your rights at work, whether related to religious rights, or otherwise, we can provide guidance and clarity.

If you are an employer facing a human rights case, we are ready to help.

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.