The Niqab in Canada: Is it a Charter Right?
The Niqab in Canada: Is it a Charter Right?
Natalie Lynn Montoya and Christopher Peter Montoya
Send Correspondence to:
Natalie L. Montoya, LLB
Phone: 1 250 392 7161
503 Centennial Drive Williams Lake,
BC, Canada V2G 4E5
Although religious beliefs and practices came under Constitutional protection in 1982 by section 2(a) of the Canadian Charter of Rights and Freedoms, the struggle to define what constitutes freedom of religion continues. Currently freedom of religion from the court’s perspective is a right to be protected as long as its expression does not bring harm or discrimination to others. This definition is one that the courts have already applied to several other different rights. It is a position that while ostensibly static is capable of fluid change as society changes over time. To set in stone how far a freedom may extend is to deny the fact that society does and will continue to change. Views on what constitutes religious beliefs are fluid and a requirement on the extension of protection to those beliefs and actions is argued could hamper the development of multiculturalism.
Religious beliefs and practices were brought under Constitutional protection in 1982 by section 2(a) of the Charter of Rights and Freedoms. Twenty-five years later the struggle to define what constitutes freedom of religion continues. In addition to the basic questions and issues that surround neutrality between religions, Canada is now in an era of balancing the right of freedom of religion in a multicultural society. As Canada further embraces multiculturalism, where does one individual’s freedom of religion encroach upon another individual’s rights or freedoms?
As stated in Singh-Multani v. Marguerite-Bourgeoys (Commission scolaire), “[r]eligious tolerance is a very important value of Canadian society.” In an advanced society acceptance of the practices of a minority group is a coveted, but not isolated, trait. Certain rights, such as freedom of religion, exist within a framework of equally protected rights. Does respect for and tolerance of religious beliefs protect the public expression of the applicable religious practices in an educational setting? Examining the case of Aishah Azmi v. Kirklees Metropolitan Council under the microscope of the Canadian Charter, this paper will look specifically at the question of: how does one balance the right to freedom of religion with that of protection of gender equality and the right to education?
In examining the previously stated questions, this paper will first present a description of Azmi. Second, it will address how freedom of religion has been defined in Canada. Third, it will discuss whether wearing a niqab in Canada is in fact a religious practice. Fourth, it will examine the possible outcomes that could result if the niqab is not declared a protected right under Section 2(a) of the Charter and, conversely, if the niqab is declared a protected right under Section 2(a) of the Charter. Finally, it will identify some of the implications of both scenarios in conjunction with suggestions for resolving issues that pertain to freedom of religion.
Mrs. Azmi was one of eight bilingual support workers at Headfield Church of England (Controlled) Junior School for children aged 7 to 11. During both her interview and the training day, Mrs. Azmi was not veiled but wearing a head covering. After being offered the position Mrs. Azmi asked for a part-time schedule of 20 hours per week and this was accommodated.
During the first week of school Mrs. Azmi requested to wear her veil when she was working with the male teachers; or in the alternative that she not be scheduled with them. The rescheduling was not possible. However, she was allowed to wear her veil while an answer was determined.
After observing Mrs. Azmi in the classroom Mr. Smith, the Headteacher, informed her that her role could not be effectively carried out while her face was covered; therefore, she would have to remove her veil while working with the children. She continued to wear the veil when in classrooms with male teachers. On October 4th, 2005, she was reminded that she was to remove her veil while working with the children, but could wear it in the communal parts of the school. On October 5th, 2005, Mrs. Azmi said that she could not do this and left work upset.
Mrs. Azmi did not return to work because of stress. There were meetings and
communications by letter between the school and Mrs. Azmi. At the conclusion of the meeting on November 9, 2005, Mrs. Azmi was “…given a Management instruction that she should be ‘unveiled in School’…”, and she was given one week to make a decision. She remained on sick leave and did not return to school until February 20, 2006. She was reminded that she was not to wear her veil while in the classroom. However, she was not willing to abide by this regulation. On February 23, 2006, she was officially suspended.
Mrs. Azmi brought a grievance before the Employment Tribunal claiming direct and indirect discrimination on the basis of religion, harassment and victimization. Regarding direct discrimination the tribunal chose as a comparator group those individuals who would also have their faces covered because of facial injuries or the wearing of a balaclava. They found that children would not be able to be effectively communicated with in these situations either. Therefore, it was not direct discrimination based on religion. In regard to indirect discrimination the tribunal, finding that there was the possible existence of indirect discrimination, examined the criterion, the aim of the criterion and the proportionality of the limit. Based on the arguments and the compromises offered by the school they found the limit acceptable.
Azmi was decided under human rights legislation in the United Kingdom. However,
this situation may at a point in the future reveal itself in Canada. For the purpose of the remainder of this paper the Azmi case will be examined in terms of a public school teacher’s assistant of the Islamic faith who has been required, by school authorities, to remove her niqab while communicating with children. Based on the specific fact that public schools are government institutions this situation falls within the realm of the Charter. Therefore, the question arises as to whether the wearing of a niqab is a right protected under section 2(a) of the Charter; and if it is, if the required removal of the niqab while communicating with children is justified under section 1 of the Charter.
Section 2(a) of the Charter states that, “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion…” This section of the Charter has received a preponderance of attention in both the tribunals and the courts. To properly define freedom of religion, one must first define and understand ‘freedom’ and ‘religion’ individually, as they apply to society.
In a democratic society that values human life and dignity, freedom is inextricably tied to a general respect for each individual. It is something that forms the individual, a part of his/her identity. In R v. Big M Drug Mart Justice Dickson (as he was then) stated that, “[f]reedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person.” The concept of freedom is embodied in the perception of life without constriction. In
fact, “[f]reedom can primarily be characterized by the absence of coercion or constraint.”  If an individual is forced by an external will to perform a certain action or to cease an action which would not otherwise have been undertaken, s/he is not truly free.
It must be remembered that while freedom is the absence of constraint, this absence must be balanced against the safety of the public. If the safety of the public, including the health and morals of others is in danger, then limitations will be imposed. Therefore, freedom is the aspect that “…no one is to be forced to act in a way contrary to his beliefs or his conscience.”
The courts have applied a broad definition of religion to include, “…a particular and comprehensive system of faith and worship…involv[ing] the belief in a divine, superhuman or controlling power.” More specifically, the court in Amselem defined religion to be,
…about freely and deeply held personal convictions or beliefs connected to
an individual’s spiritual faith and integrally linked to one’s self-definition and
spiritual fulfillment, the practices of which allow individuals to foster a
connection with the divine or with the subject or object of that spiritual faith.
Ikuenobe states that “[r]eligious practices [also] involve broad cultural expressions.” Therefore, society and by connection the courts, need to identify religion
holistically and not partitioned into belief and acts.
Based on the aforementioned definitions, freedom of religion is the right to act or not act according to that which brings a connection to the individuals’ higher power. The courts have defined freedom of religion broadly. It encompasses: the right to choose a belief, the right to demonstrate those beliefs in public, including the ability to worship and instruct, and the right against being required to take part in actions that conflict with those tenets. Therefore, the protection offered by Section 2(a) of the Charter encompasses the right to choose, and the right to exercise that choice as each individual sees fit, with exception only to the protection of others in society.
If freedom of religion is the right to choose to act, or to choose not to act in a certain way based on religious belief, the question becomes ‘where is the boundary that properly identifies and balances the rights at issue.’ More specifically, what religious practices will be protected under the Charter? Further, is it necessary that the act and/or belief be accepted by all sects of the specific religion in question? Do the act and/or belief have to be required by the tenets of the individuals’ religion? In essence, what constitutes a religious act or belief that is protected under section 2(a) of the Charter?
This question has been dealt with in both the tribunals and the courts. The general consensus is that the act and/or belief does not have to be required by the tenets of the specific religion, or something that every sect of the religion in question practices. With the introduction of the Charter, each person in Canada has the right to decide what they believe and what the requirements of that faith are. In addition, the government is not in a position to state otherwise.
The question of whether or not it is necessary that the act and/or belief be accepted by all sects of the specific religion has been before the courts several times. In Singh, the Supreme Court of Canada (SCC) stated that, “[t]he fact that different people practice the same religion in different ways does not affect the validity of the case of a person alleging that his or her freedom of religion has been infringed.” Justice Charron further described that what was required was sincerity of belief that the action was a religious tenet of their faith. Further, in Amselem Justice Iacobucci made it clear that the protection afforded under freedom of religion did not only attach to those beliefs that are recognized as required by religious scholars and leaders. He further stated that “…claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make…”
A further clarification of what will be encompassed by freedom of religion has been made in regard to situations involving voluntary versus obligatory acts and expressions of religious belief. Justice Iacobucci stated that in addition to acts which hold a ‘nexus with religion’, freedom of religion comprises those acts which are held in esteem by others of the same religion as well as those which are personal choices. Therefore, both mandated and voluntary acts of religion should fall under the protection of the Charter.
It is the sincere belief in an action that holds a nexus with religion that brings it under Charter protection, not the perceived obligation that provides it with the requisite standards. In fact, “…the court’s role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.” Further, Amselem states that the question of sincerity is one based on fact, not instituted in the past but based on the present belief of the individual in question. Once the genuineness of the declared belief has been determined, the court should not inquire into the soundness of the belief. Upon a government requirement interfering with a faith based conduct, ‘constitutional scrutiny’ will be warranted.
Ikuenobe states that, “…freedom of religion ensures that every individual must be free to hold and to manifest without State interference those beliefs and opinions dictated by one’s conscience.” In order to enjoy freedom of religion in a democratic state, society must be willing to respect the individual’s right to choose the beliefs and practices that they will apply to their life. While there are limitations, the aforementioned definitions and cases point out that a broad interpretation is necessary if we are to enjoy the multiculturalism that our country treasures. In fact, “[t]rue tolerance suggests that people should holistically value diverse religious expressions.” If we are to call ourselves a free society that embraces individualism we must accept differing viewpoints and a variety of traditions; and aim for impartiality in the participation of those protected acts.
The Niqab in Canada: Is it a Charter Right?
The views on whether the niqab is required by the Islamic faith are varied. Certain sects believe that women should be covered from head to foot, while others do not. In fact, “[t]he debate on the wearing of the face veil and the status of women in Muslim society is being waged primarily within Muslim society and is part of the battle for the heart and soul of Muslim communities worldwide.” There appear to be two viewpoints on the niqab: 1) it is wajib or
obligatory and 2) that it is mustahab or suggested as the best choice.
Putting forth the view that the niqab is not a requirement, J. E. Rash states that, “…the complete covering of women in public reflects Persian customs that predate Islam. In the Qur’an, both men and women are enjoined to dress modestly. The Qur’an does not specify that women must cover themselves completely from head to foot.” The Muslim Congress of Canada quotes Dr. Yousuf al-Qaradawi, a Qatar-based Islamic scholar, stating, “‘it is not obligatory for Muslim women to wear the niqab (full face veil)…The majority of Muslim scholars and I do not support the niqab in which women cover their faces.’”
While there are prominent views that the niqab is not required there are equally prominent views that it is. For example, one verse in the Qur’an states, “‘O Prophet! Tell your wives and your daughters and the women of the believers to draw their cloaks (‘Jalabib’) veils all over their bodies (screen themselves completely except the eyes or one eye to see the way Tafseer Al-Qurtabi)…” The Hadith states, “Narrated Safiya bind Shaiba (Radhiallaahu Ánha) ‘Aisha ((Radhiallaahu Ánha) used to say:’ When (the Verse): ‘They should draw their veils over their necks and bosoms,’ was revealed, (the ladies) cut their waist sheets at the edges and covered their faces with the cut pieces.” Based on these verses, and many more, the view held by many is that wearing the niqab is the best choice for Islamic women.
These views are a few amongst many. However, it is of no consequence whether all individuals of the Islamic faith have the same perspective on the niqab. The case of Singh states that, “[w]hat an individual must do is show that he or she sincerely believes that a certain belief or practice is required by his or her religion.” Therefore, if the belief that a woman is to wear a niqab is sincerely and presently held by the individual, it will be protected by the Charter.
Having defined ‘freedom of religion’ and examined the views in regard to the niqab, this section of the paper examines whether section 2(a) of the Charter has been infringed. If it has been infringed, was the infringement justified?
If Mrs. Azmi was a public school assistant who was required to remove her niqab while
communicating with children, she would be able to claim an infringement of her rights under Section 2(a) of the Charter. While the claim for infringement in this situation is not against a legislated breach of freedom of religion, but rather, a government action, the Eldridge case made it clear that, “…the Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision-maker in applying it.” The Amselem case laid out a three step test to determine if section 2(a) was triggered. Singh further distilled the test into two steps:
(1) that he or she sincerely believes in a practice or belief that has a nexus with
(2) that the impugned conduct of a third party interferes, in a manner that is non-
trivial or not insubstantial, with his or her ability to act in accordance with that
accordance or belief.”
Two possible outcomes could result from the application of this test: 1) the practice is not a protected right and 2) the practice is a protected right.
The first situation deals with the scenario where the practice is not found to be a protected right. This may occur if it is accepted that the niqab is not required by the tenets of the Islamic faith, and it is decided that Mrs. Azmi is not sincere in her statements of belief. This would possibly occur if the court took into account the fact that she was unveiled at the interview with Mr. Smith and at the training day where there were male teachers present. In this situation section 2(a) would not be triggered and the analysis would go no further. This same outcome would unfold if the courts found that the requirement of removing her niqab was a trivial infringement. Therefore, she would not have the right to a remedy, and if she desired to return to work she would be required to remove her niqab whenever she was communicating with children.
The second possible outcome is that her right to wear the niqab is found to be protected. Applying the Amselem/Singh test, Mrs. Azmi must demonstrate that she sincerely believes she must wear the niqab at all times in order to comply with the requirements of the Islamic belief system. As stated in Ross, “[A]ssuming the sincerity of an asserted religious belief, it …[is]…not open to the Court to question its validity. It …[is] sufficient to trigger constitutional scrutiny if the effect of the impugned act or provision interfered with an individual’s religious activities or convictions.” Mrs. Azmi has worn a veil since she was 15 and she has chosen to give up her means of provision for her convictions. Justice Charron stated in Singh in regard to Gurjab Singh’s refusal to wear a ‘fake’ kirpan that the belief was not capricious; nor was it of any effect that other Sikhs would accept the compromise. Applying this reasoning to the case at hand, Mrs. Azmi’s belief is not capricious, she sincerely believes that in order to obey the commandments of Allah she must wear the niqab at all times, especially in the presence of unrelated males. Further, it is of no consequence for this part of the test whether other Muslim sects disagree with this belief.
The final aspect is whether or not the interference is trivial or insubstantial. By requiring Mrs. Azmi to remove her niqab while communicating with children, she was forced to choose between her religious convictions and her ability to make a living. She was suspended because of her decision to follow her conviction. The requirement that she remove her niqab has deprived her of the ability to provide for herself. Therefore, there has been an infringement of her freedom of religion, and what must now be identified is whether or not the infringement is justified under section 1 of the Charter.
If a right has been found to be infringed, the infringement will only be upheld if it meets the criteria as laid out in section 1 of the Charter. Section one provides that, “[t]he 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.” In determining if an infringement is justified there must be an evaluation of morals and beliefs. Specifically, balancing the acceptance of differing philosophies against the framework of deference to cultural distinctiveness and belief in societal organizations that encourage the interaction and dignity of individuals is required.
In determining if the infringement can be justified under section 1, the test set out in R v. Oakes is applied. The first step of the Oakes test, a pressing and substantial objective, is that, “…the objective, which the limit on a Charter right or freedom is designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’….” Once this has been established the second part of the test involves, “…the party invoking s.1…[to] show that the means chosen are reasonable and demonstrably justified.” This second part of the test, also known as the proportionality test, involves three factors: that the means chosen to infringe the right “must be rationally connected to the objective…”, that the infringement is minimally impairing on the right claimed, and that the benefit of the infringement outweighs the detriment of the limit imposed. These steps must now be applied to the decision requiring Mrs. Azmi to remove her niqab while communicating with children.
When examining the objective that has caused an infringement on a Charter right, “[i]t is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.” Further, the decision must be made in accordance with a high standard such that those objectives which are seen to be minor or incompatible with the values of society are not protected under section one.
The decision requiring Mrs. Azmi to remove her niqab while communicating with children will likely be found to be a pressing and substantial objective. In this situation the school authorities have acted in order to ensure a setting that is favourable to the continued interaction and communication between student and teacher and, therefore, the student’s development and ability to learn.  A similar objective was found compelling in Singh.
A teacher who instructs children with their face covered invites controversy with two objectives: gender equality and the right to a full and complete education. When in the school environment children are not only affected by what the teacher says, but also by how the teacher looks. First, gender equality is not only an objective but a protected right. The issue here is the connotation to the children in the class that women are to be hidden from the rest of society. The allowance of the niqab may be understood as the government’s approval of the restriction of women in society. The second objective is the right of children to a full and complete education. If the teacher’s face is covered, her words, to a certain extent, are going to be muffled and hard to hear. This provides a distinct problem when approximately “…1.3% of all students with disabilities …[receive] special education services under the category of ‘hearing impairment’.” In addition, when learning a second language it is extremely important that students be able to see the placement and framing of the mouth when learning to say words.
The proper education of children is a pressing and substantial objective. However, the outward manifestation of a religious belief is also a form of education. Therefore, while the first requirement has been met, it must now be determined if the imposed limit is proportional.
Under the proportionality stage of the section 1 analysis there are three sub-sections: rational connection, minimal impairment and effects of the measure. A failure at any of these three sub-stages requires that the limit be found not to be justified.
In determining if there is a rational connection between the limit imposed and the objective in question, “…the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.” In Trinity Western University v. College of Teachers (BC) the objective of guaranteeing a friendly and accommodating learning environment was found to be rationally connected to the limit imposed. Being veiled inhibits the equal view of women in Western society, the ability to properly hear what is being said, the ability to respond to facial expressions and the ability to see lip placement in the pronunciation of a word. In addition, the presence a teacher or teacher’s assistant whose face is covered such that a child cannot properly learn does not lend to a warm and accommodating learning environment. In Kempling v. College of Teachers (BC) the appellants’ writings against homosexuality were found to be harmful to the student body, and to individual student groups; therefore, the sanction of suspension was rationally connected to the objective of protecting students and offering an environment free from judgement. Correspondingly, inhibiting the equal view of women combined with the inability of children to be properly educated in the learning environment also harms the student body, specifically those under the tutelage of Mrs. Azmi. Therefore, the school’s requirement that Mrs. Azmi refrain from wearing her niqab while communicating with children is rationally connected to the objectives of gender equality and the right to a full education.
The discussion around whether a limit is minimally impairing is usually the deciding factor as to whether or not the infringement is justified. While the limit imposed should infringe as little as impossible on the right in question, it must be remembered that the limit is not required to be the least conservative measure. In RJR-Macdonald Inc v. Canada (AG) the SCC stated the test as:
The impairment must be “minimal”, that is, the law must be carefully tailored
so that rights are impaired no more than necessary. The tailoring process
seldom admits of perfection and the courts must accord some leeway to the
legislator. If the law falls within a range of reasonable alternatives, the courts
will not find it overbroad merely because they can conceive of an alternative
which might better tailor objective to infringement.
The court in Singh was faced with a similar situation as we are in Azmi. No legislation was involved. Justice Charron made it clear that whether or not the situation was founded on legislation or a decision based on ‘statutory discretion’ the approach was the same. Therefore, the question at this junction is whether the requirement that Mrs. Azmi not wear her niqab while communicating with children “…falls within a range of reasonable alternatives…”
Once section 1 of the Charter has been triggered it is the government’s responsibility to prove that the limit is justified. Therefore, at this stage of the proportionality test the question to be answered is if the school authorities have made the stronger argument that not being veiled while communicating with children is necessary. The two objectives in support of this argument are: 1) the promotion of gender equality and 2) the right of children to a full and complete education.
The first argument against Mrs. Azmi being veiled while communicating with children is its implications on gender equality. Ikuenobe said that, “[t]he state ought not to be involved in private matters of religious beliefs and practices except where it harms others.” In fact, our societal values dictate that each person be able to believe what they choose, with the only restriction being that those beliefs not bring harm to their neighbour, either physically or to their equally protected rights. Therefore, does the wearing of the niqab truly harm the objective of
Gender equality is tied to the issue of status. Balkin states that, “…sociological status is usually tied to a system of social hierarchy’ in which ‘one group receives relatively positive associations and another, correspondingly negative associations.” The argument is that by being veiled while communicating with children, Mrs. Azmi is by default implying a negative association to the status of women. In addition “[a] way of life is not learned but rather absorbed. Its transmission is mimetic, imbibed from parents and friends, and patterned on conduct regularly observed in home and street, synagogue and school.” Arguably, allowing Mrs. Azmi to be veiled may encourage the girls in her class and the entire school to mimic her choice. In turn this encouragement paves the way for a negative view of women.
The tribunal in Peel Board stated, “…we know from Keegstra (supra) and Ross (supra) that… a teacher, not only as role model, mentor and confidante to his/her students but also as a representative of the school board, occupies a central position that extends beyond the classroom.” Children place their teachers in a place of authority in their life. They are individuals that the children respect, trust and at times wish to emulate. Allowing the niqab on school property may encourage the imitation of the personal choice of Mrs. Azmi. In addition to the negative impact on the status of women, it may be argued that the importation to the students is that another woman who chooses not be covered in such a way is unclean and immodest in her attire. This implication does not encourage equality between women and men. At best it creates a chasm between the treatment of them by suggesting that a man’s face can be seen and a woman’s cannot; further, it creates a hierarchy between women as to who is seen as superior to another. Further, since the school is 92% Muslim there may be a student who believes that she is only required to wear the hijab.  Every time she attends class she is faced with an authority figure whose attire cries out loudly that her choice is not the best one according to Allah. The school environment is to encourage all forms of equality without substantially harming any aspect of it. It is the responsibility of teachers to make sure that their actions convey this standard both in the learning environment and outside of it.
Two counter-arguments can be advanced. First, that allowing Mrs. Azmi to be veiled actually strengthens the autonomy of the woman in society. It shows an empowerment held by women to choose their attire, and to not have to follow what society deems as acceptable for equality. The second argument is that allowing the niqab fosters an environment in which children are able to learn the importance of freedom of religion and the right to choose their own paths of belief. They are experiencing a situation which highlights Canada’s multiculturalism. Ikuenobe argues that, “[t]he state should equally respect and protect the rights and freedoms of all individuals; [that] this will engender religious and cultural diversity and pluralism.” The argument is that by allowing her to wear a niqab children will learn tolerance, neutrality and respect for other people’s cultures, religions and choices.
The atmosphere of a school is such that it fosters a special connection between students
and teachers. In a secular institution society is to endeavour to provide an environment where children are not unduly influenced in such a way that they are unable to critically examine for themselves their own choice and expression of belief. On the international forefront, Dahlab v. Switzerland found that a teacher was not permitted to wear a headscarf because the requirement of the State was such, “…that students should be educated in a neutral atmosphere.”
The concern regarding the impact on gender equality is a strong one. However, the opposite arguments of education in regard to religious tolerance and the empowerment of women to choose what they wear are equally as compelling. Therefore, prior to making a determination on minimal impairment, it is necessary to examine the second objective.
Right to a Full and Complete Education
The second argument that could be advanced by the government, and was advanced in Azmi, is that the wearing of a niqab inhibits a child’s right to a full and complete education. The advice of the Education Service was that, “[i]t follows that for teachers or support workers wearing a veil in the workplace will prevent full and effective communication being maintained. In our view the desire to express religious identity does not overcome the primary requirement for optimal communication between adults and children.” This argument stems from three specific situations: an inability to correctly hear what the teacher is saying, the inability to see the teacher’s mouth, and the inability to see facial expression.
The first situation involves the ability to correctly hear the teacher. The covering of the mouth by thick cloth inhibits the ability of children to properly understand what is being said. When Mr. Smith was observing Mrs. Azmi’s interaction with the children he noted that her speech was not as clear as it would be without the interference of the veil. In addition, there were several times when she had to speak to the children at the same time as the teacher, therefore, her speech had to much quieter while still being clear to the children. While this impairment may appear to be minimal to the average child, the situation is exponentially compounded in a situation where children are learning a new language and/or there are children with hearing disabilities in the classroom. Six out of every 1000 Canadian children are born with a hearing impairment, and the estimation is that one in ten American children in school suffer from hearing deficiency. This also affects students outside the classroom. Students often receive instructions from teachers while they are in the hallway and on the playground. Hallways are filled with other talking students, the sound of shoes on the floor and lockers being opened and closed. Playgrounds are a jumble of noise from the accumulation of talking students, the thunder of shoes on playground toys, and the sounds of cars as they pass by on the road. For the average child these issues would inhibit their ability to hear instructions when a teacher is speaking to them without a face covering. The addition of thick cloth covering the mouth may make hearing and understanding the teacher, for those with these issues next to impossible.
The second issue relates to being able to see a teacher’s mouth when learning how to speak a new language. This is especially important when learning how to pronounce certain letters of the alphabet. As pointed out in Azmi, “…children learning English as a second language need to see their teacher’s and the bi-lingual support worker’s mouth so that they [can] learn how words are formed and spoken…” The issue of sight of the teacher’s mouth also presents issues for children with hearing impairments. Many people with hearing impairments rely, to a certain extent, on the ability to read people’s lips in order to properly understand what is being said.
The final argument is in regard to the aspect of facial expressions. Facial expressions can emphasize what is being said. In addition, facial expressions can convey several different emotions. Your voice may be monotone, yet you are smiling. A child may be instructed to cease an activity or told why there are consequences for an action. However, while the child understands that what they did was wrong, the expression on a teacher’s face is able to convey that the child is still cared for and that they are not a ‘bad’ person. The wearing of a niqab would severely hamper this ability.
The argument in favour of increasing language volume is impractical. She is required to speak concurrently with the teacher, and an increase in volume would cause interference with the teacher’s instructions. If a child learning a new language cannot see how to place their mouth in order to form the word themselves, or if a child cannot hear the support worker properly because of the interference of a veil then their right to a full and complete education has been hampered. Protection of the education of children is paramount. Therefore, this argument must succeed.
The argument in regard to gender equality resulted in an impasse; however, the objective
of full and complete education must succeed in favour of the school. When balanced against the protection of the education of a vulnerable group, namely children, the limit requiring Mrs. Azmi to remove her niqab while communicating with children is minimally impairing to her religious rights.
The remaining issue is whether the limit falls within a reasonable range of alternatives. Several compromises were both offered and considered by the parties. Mrs. Azmi asked that her schedule be such that she worked only with female teachers. However, upon evaluation of this request, the schedule was unable to be modified, partly due to her request for part-time hours. There was the suggestion of her working behind a screen with the children in question. However, this was also found to be unacceptable due to the ostracizing of the children. Finally, there was a suggestion that Mrs. Azmi be situated such that her back was to the male teachers. However, this was also found to be impractical and rejected by Mrs. Azmi because the teachers do not remain stationary. Therefore, with reference to the above alternative suggestions, the limit falls within a range of reasonable alternatives, and is found to be minimally impairing.
The final aspect is to balance the benefits of the measure against its detriments. The objective may be pressing and substantial, rationally connected and minimally impairing, yet the limit may still be found unjustified under effects and measures. Dickson CJC (as he was then) stated, “[t]he more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.” Newfoundland (Treasury Board) v. N.A.P.E. mapped out two questions to be asked: 1) what were the beneficial and detrimental effects of the limit and 2) does the detrimental effect of the limit outweigh the benefit gained.
1) What were the beneficial and detrimental effects of the limit?
The beneficial effect of this limit affects the students both currently and in the future. The removal of the veil shows that a woman’s face is equally as deserving to be seen as a man’s. Mrs. Azmi is a bilingual support worker. Her work involves teaching children how to speak English. The benefit of being able to see the shape of her lips during word formation is one of the most important aspects of their education. In addition, the evidence has shown that the veil compromises the clarity of her words, specifically at the times she has to speak concurrently to the teacher.
The detrimental effects are to the constitutionally protected right of freedom of religion. This right is a treasured value in Canada, and is not to be taken lightly. While the limit is not an absolute ban prohibition, it may still have the effect of suppressing such values as multiculturalism, tolerance, and respect for other’s beliefs. The limit imposed may weaken the significance of the religious act and may imply to the students that certain religious practices are not worthy of equal protection. 
2) Does the detrimental effect of the limit outweigh the benefit gained?
While the detrimental effects appear severe, they do not outweigh the need to protect vulnerable members of society, namely children. The seriousness of children being taught in an environment where gender equality is fostered and the level of instruction is at the highest standard is insurmountable. Further, with the compromise offered, the ability to wear her veil in the communal areas of the school, the children are being shown that while society respects the religious views of individuals those views are balanced against the rights of others.
As was presented as evidence in Azmi, “…the Education of children is paramount.” The adverse affects to Mrs. Azmi’s religious freedoms are nontrivial in nature. However, the benefit of protection to the education of children, both in learning and in viewing the role of women in society, outweighs the detriment incurred.
In the United Kingdom, Mrs. Azmi’s claim was dismissed. Likewise, in a Charter application, the limit imposed would probably be found to be justified under section 1. Mrs. Azmi would have no right to a remedy and would have to choose between returning to work, respecting the limit, or seeking other employment.
Several issues arise from the battle for freedom of religion. Three specific issues can be examined under the rubric of implications and suggestions. First, what should be done in this case? Second, what is at stake? Finally, how can competing concerns be addressed?
In asking the question what should be done, the specific application is in regard to freedom of religion and the educational sphere. The question is what is the balance between freedom of religion and protecting the rights of the vulnerable? One of the key aspects of the Charter is the protection against coercion or limitation as balanced against the rights of a diverse society.
In the educational realm the concern is the coercion of a vulnerable people. Therefore, while the best suggestion in regard to freedom of religion is to continue to encourage the public interaction of several different belief systems, this may not be applicable in the classroom setting. Children need to be taught respect for beliefs while at the same time learning that rights have to be balanced in a multicultural society.
Therefore, the outcome of this case should be such that where individuals are in a position of authority they should restrict their external expressions of faith to a minimum. This will allow children to see that society respects each culture and cultural belief while balancing it against other objectives and rights.
The question of what is at stake with this kind of decision has far reaching implications. These implications fall into two categories: the loss of secularism and the loss of freedom of religion. In regard to the loss of secularism the issue becomes, if we continue to allow protection of religious practices in the public sphere, we will digress to the point of forcing the beliefs of one group onto another. With a decline of secularism what must follow is a rise in spirituality and the fundamental view that age old religious ideals can single-handedly rescue the world from imminent moral failure. A further view that accompanies the decline of secularism and the rise of traditional mores is the increase in the oppression of women.
The second implication is the loss of freedom of religion. This implication arises out of the slow encroachment against the beliefs held by the religiously inclined. The concern is whether the disallowance of one form of expression will eventually lead to complete obliteration of religious expression and possibly belief. The disallowance of the niqab may eventually lead to the refusal of the right to wear necklaces and broaches of saints. In addition, there is the concern that if there is segregation to the private realm of one act or expression it may eventually,
…lead to the absurd situation that a Christian police officer could interact
only with other Christians, a woman police officer could interact only with
other women, a black police officer only with other blacks, a Native Canadian
only with other Native Canadians, and, presumably a white only with other
While this type of reaction would undermine our societal values of tolerance, respect and acceptance with each government encroachment on freedom of religion, freedom declines and coercion and/or limitations increase.
The best suggestion as to how competing concerns can be addressed is for the courts to continue in their current fashion of a careful examination and balancing of the competing rights of society. In addition, a dialogue between those with differing philosophies needs to be encouraged and cultivated. With knowledge comes understanding and acceptance. The education system needs to foster the interaction of viewpoints and ideas. The implication is that through the interaction of people, society’s view will be able to morph as the situation requires. J.E. Rash states, “…differentiation among peoples allows for a pooling of wide-ranging capabilities, a cross-fertilization of insights, and an array of options for organizing and reorganizing society as circumstances warrant.” If society and, by default, individuals accept that there are different religions and they learn to accept those religions and their respective beliefs the perfect implication would be that there would be more peace in the world and less strife.
Freedom of religion is a fundamental freedom that comes with certain rights. The majority in Big M Drug Mart stated that, “…the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others.” However, it also comes with the limitation that the right cannot interfere with the protection of other individuals.
How far should the freedom of religion extend? The courts have expressed the line as it is a right to be protected as long as its expression does not bring harm or discrimination to others. This line is one that the courts have applied to several different rights. It is a line that while static may also be flexible and is capable of fluid change as society changes over time. To set in stone how far a freedom may extend is to deny the fact that society is fluid and changes over time. Views on religion and what constitutes a religious belief change daily, and a requirement on extension of protection to those beliefs and actions would only hamper the development of a multicultural tradition.
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 Singh-Multani v. Marguerite-Bourgeoys (Commission scolaire), (17 May 2002), no C.S. Montreal 500-05-071462-020 (Que. S.C.); rev’d by  J.Q. No. 1904, 241 D.L.R. (4th) 336, 2004 CarswellQue 11898; rev’d by 2006 SCC 6, 345 N.R. 201, 38 Admin. L.R. (4th) 159, 137 C.R.R. (2d) 326, 264 D.L.R. (4th) 577,  1 S.C.R. 256, 2006 CarswellQue 1368 at para 76 [Singh cited to SCC as listed in CarswellQue].
 Syndicat Northcrest v. Amselem,  R.D.I. 489, 1998 CarswellQue 830 (Que. S.C.); aff’d by  R.J.Q. 906,  R.D.I. 233, 2002 CarswellQue 601 (Que. C.A.); rev’d by 2004 SCC 47, 241 D.L.R. (4th) 1,  2 S.C.R. 551, 2004 CarswellQue 1543 at para 1 [Amselem cited to SCC in CarswellQue].
 Aishah Azmi v. Kirklees Metropolitan Council, case 1801450/06 UK Employment Tribunals (unreported); aff’d by Aishah Azmi v. Kirklees Metropolitan Centre, Appeal No. UKEAT/0009/ 07/MAA [Azmi cited to Tribunal Level].
 I have come across two spellings for this head-covering or veil: the niqab and the niqaab. For the purpose of this paper I will use the spelling niqab save for its use in quotes.
 Azmi, supra note 4.
 Ibid. at para 3.1 to 3.8.
 Ibid. at para 3.09 to 3.20.
 Ibid. at para 3.31
 Ibid. at para 3.21 to 3.47.
 Ibid. at para 6.1- 6.7.
 Ibid. at para 8.1 to 25. Mrs. Azmi’s claim in regard to harassment was also dismissed. However, her claim in regard to victimization was successful and she was awarded £1,100.
 Azmi, supra, note 4 at para 8.1 to 8.2. The law in question was the Employment Equality (Religion or Belief) Regulations 2003 at Regulation 3(1) which provides: “A person discriminates against another if, on the grounds of religion or belief, A treats B less favourably than he treats, or would treat, another person.” In addition, Article 2.2(a) of the Directive: “Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds referred to in Article 1.”
Ibid. at para 10.1. Indirect Discrimination is defined at Regulation 3(1)(b) which states: “A applies to B a provision, criterion or practice which he applies, or would apply, equally to persons not of the same religion or belief as B, but (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons; (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.” In addition, Article 2.2(b) of the Directive: “Indirect discrimination shall be taken to occur when an apparently neutral provision, criterion or practice which would put persons having a particular religion or belief…at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
 Further research should also be conducted to see if the outcome would differ if the individual in question was a teacher as opposed to an assistant.
 But See P. Macklem et al., Canadian Constitutional Law, 3rd ed. (Toronto: Emond Montgomery, 2003) at page 793 note 2 where it states that the situation surrounding public schools and their subjectivity to the Charter has not yet been clearly decided in the case law. Therefore, the question still remains as to whether public schools fall under the same realm as universities and, therefore, are not government institutions or if they are considered similar to colleges and, therefore, government institutions. For the purpose of this paper the standpoint will be that public schools fall under the regime of government and that the Charter does apply.
 Charter, supra note 1 at s. 2(a).
 R v. Big M Drug Mart Ltd., 37 Alta. L.R. (2d) 97,  3 W.W.R. 481, 18 D.L.R. (4th) 321,  1 S.C.R. 295, 1985 CarswellAlta 316 at para 94 [Big M cited to CarswellAlta].
 Ibid. at para 95.
 Amselem, supra note 3 at para 39.
 Polycarp Ikuenobe, “Diverse Religious Practices and the Limits of Liberal Tolerance” in David Odell-Scott ed., Democracy: Free Exercise and Diverse Visions (Kent: The Kent State University Press, 2004) 309 at 312 [Ikuenobe].
 Big M, supra note 17 at para 94-95. Accord Amselem, supra note 3 at para 40 and Singh, supra note 2 at para 32.
 Hendrickson Spring v. United Steelworkers of America, Local 8773 (Kaiser Grievances),  O.L.A.A. No. 382, File No. MPA/Y500683 (Ont. Lab. Arb.) at para 21 (LN) [Hendrickson].
 Big M, supra note 17 at para 136.
 Singh, supra note 2 at para 35. This case involved the situation of a Sikh student who was attending a public school in Quebec. He believed that under the tenets of his religion he was obligated to wear a kirpan (a dagger made of metal) at all times. The applicant stated that the kirpan was never to be used to cause harm. Gurbaj (the child) wore his kirpan under his clothes while at school. However, one day it fell out of his clothes. The school board authorized the wearing of the kirpan under his clothes as long as it was sealed in. Two months later a decision was made not to ratify the agreement. From this decision the school commissioners notified the Singh-Multani’s that a symbolic form of the kirpan, that was not harmful, could be worn to school. This was not acceptable to the applicant and he was required to transfer to a private school. Subsequently, a challenge was brought based on the argument that the refusal of the school to allow the wearing of the kirpan was an infringement on his freedom of religion rights under the Charter. The Ontario Superior Court granted the application and stated that he could wear the kirpan based on certain conditions, including that the kirpan be made of wood and not metal. The decision was appealed by the school and the appeal was allowed. This decision was appealed by the Singh-Multani’s to the Supreme Court of Canada where they allowed the appeal, “…set[ting] aside the decision of the Court of Appeal, and declare[ing] the decision of the council of commissioners to be null, with costs throughout…” (ibid. at the facts of the case and para 83).
 Ibid. at para 35.
 Amselem, supra note 3 at para 43.
 Ibid. at para 46 and 47.
 Ibid. at para 52.
 Ibid. at para 53.
 Attis v. New Brunswick District No. 15 Board of Education (sub nom. Ross v. New Brunswick School District No. 15), 113 D.L.R. (4th) 1,  1 S.C.R. 825, 171 N.B.R. (2d) 321, 37 Admin L.R. (2d) 131, 1996 CarswellNB 125 at para 22 [Ross cited to CarswellNB].
 Ibid. at para 72.
 Ikuenobe, supra note 24 at 332.
 Big M, supra note 17 at para 94.
 “Reject the Niqab”, online: Muslim Canadian Congress < http://www.muslimcanadiancongress.org/20061108.
html> (as of January 14, 2006) [Reject].
 UmAmir “Niqab: Religious Reference to Niqab” online at: <http://www.geocities.com/CollegePark/Plaza/8909/ niqab.html> as of March 3, 2007 cited at Al-Muhajabah, “Niqab Page” online: <http://www.muhajabah.com/niqab-index.htm> as of April 8, 2007.
 J. E. Rash, “Islam at the Crossroads of Extremism and Moderation: New Science, Global Peace, and Democracy” in David Odell-Scott ed., Democracy: Free Exercise and Diverse Visions (Kent: The Kent State University Press, 2004) 139 at 149 [Rash].
 Reject, supra note 39.
 The Quran at Surah Al-Ahzaab, Verse #59 as cited at “The Niqaab in light of the Holy Quran and Sahih Hadith and in the Opinions of the great scholars…” online: http://members.tripod.com/ibnfarooq/niqaab.htm as of March 3, 2007 [Quran].
 The Hadith at Sahih Al-Bukhari, Volume 6, Book 60, Hadith #282 as cited in Quran, ibid.
 Supra note 40.
 Singh, supra note 2 at para 35.
 Eldridge v. British Columbia (AG),  3 SCR 624 as cited in Ibid. at para 22. Note, Azmi, supra note 4 at para 16 where the dress codes stated: “Wherever possible individuals should be able to wear clothing related to or in accordance with cultural or religious practice, unless there is a Health and Safety or Operational reason not to, and this reason is in proportion to the aim, i.e. the Education of children is paramount.” However, what was at issue was the order of removal of the veil and not the legislation.
 Amselem, supra note 3 at para 56-57: “1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and 2) he or she is sincere in his or her belief. 3) A court must then ascertain whether there has been enough of an interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under… (…the Canadian) Charter.” At para 58 Justice Iacobuuci states that in regard to the third prong of the test, “Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religious practice that are non-trivial.” Accord Singh, supra note 2 at para 34.
 Singh, ibid.
 Azmi, supra note 4 at para 3.8.
 Ross, supra note 35 at para 22.
 Azmi, supra note 4 at para 3.8 and following paragraphs.
 Ibid. at para 9.4.
 Singh, supra note 2 at para 16.
 Charter, supra note 1 at s.1.
 Ross, supra note 35 at para 77.
 R. v. Oakes, 26 D.L.R. (4th) 200,  1 S.C.R. 103, 53 O.R. (2d) 719, 1986 CarswellOnt 95 [Oakes cited to CarswellOnt].
 Ibid. at para 73.
 Ibid. at para 74.
 Ibid. at para 73.
 Singh, supra note 2 at para 74. See Azmi, supra, note 4 at para 15.
 “Deafness and Hearing Loss” 2004 Fact Sheet: A Publication of the National Dissemination Center for Children with Disabilities FS3, online: NICHY <http://www.nichy.org/pubs/factshe/fs3.pdf > as of March 2, 2007. (“Hearing loss and deafness affect individuals of all ages and may occur at any time from infancy through old age. The U.S. Department of Education (2002) reports that, during the 2000-2001 school year, 70,767 students aged 6 to 21 (or 1.3% of all students with disabilities) received special education services under the category of ‘hearing impairment.’”)
 Azmi, supra note 4 at para 17.
 Oakes, supra note 57 at para 74.
 Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31,  B.C.W.L.D. 665, 199 D.L.R. (4th) 1, 2001 CarswellBC 1016; affirming (1998), 169 D.L.R. (4th) 234, 11 (B.C. C.A.), affirming (1997), 47 C.R.R. (2d) 155 (B.C. S.C.) at para 96 [TWU cited to SCC at CarswellBC].
 Kempling v. College of Teachers (British Columbia), 2004 BCSC 133, 31 C.C.E.L. (3d) 234, 27 B.C.L.R. (4th) 139,  7 W.W.R. 741, 2004 CarswellBC 210; leave to appeal to the SCC dismissed 350 N.R. 193 (note), 229 B.C.A.C. 319 (note), 379 W.A.C. 319 (note), 2006 CarswellBC 121 at para 100 – 105 [Kempling cited to BCSC as stated in CarswellBC].
 Singh, supra note 2 at para 50.
 Oakes, supra note 57 at para 74 and Singh, supra note 2 at para 50, respectively.
 RJR-Macdonald Inc. v. Canada (AG),  3 S.C.R. 199 at para 160 as cited in Singh, supra note 2 at para 50.
 Singh, ibid. at para 51.
 Ibid. at para 54.
 Ikuenobe, supra note 24 at page 315.
 Big M, supra note 17 at para 124.
 Jack M. Balkin, “The Constitution of Status” (1997) 106 Yale L.J. at page 2323 and 2360 as cited in Beverly Baines, “Equality, Comparison, Discrimination, Status” in Fay Farady, Margaret Denike, and M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006) 73 at 89.
 Haym Soloveitchik, “Migration, Accultration, and the New Role of Texts in the Haredi World,” in Martin E. Marty and Scott Appleby, eds., Accounting for Fundamentalisms (Chicago: University of Chicago Press, 1994) 197 cited in John Burgess, “Religious Fundamentalism and Democratic Social Practices: Or, Why a Democracy Needs Fundamentalists, and Why They Need a Democracy” In David Odell-Scott ed., Democracy:Free Exercise and Diverse Visions (Kent: The Kent State University Press, 2004) 221 at 222 [Burgess].
 Peel Board of Education v. Ontario Secondary School Teachers’ Federation (Fromm Grievance),  O.L.A.A. No. 154 (Ont. Lab. Arb.) at para 113.
 Azmi, supra note 4 at para 3.1.
 Ross, supra note 35 at para 100.
 See Joel Windle, “Schooling, Symbolism and Social Power: The Hijab in Republican France” (2004) 31 The Australian Educational Researcher No. 1, 95-112 at 99 [Windle]. For further discussion on the international issue of the banning of the hijab in France and its impact see Liz Fekete, “Anti-Muslim Racism and the European Security State” (2004) 46(1): 3-29 Race & Class online: Institute of Race Relations <http://rac.sagepub.com> as of April 3, 2007.
 Ikuenobe, supra note 24 at page 309.
 Singh, supra note 2 at para 65.
 Nouvel Observateur Forum, Ayrel, Langon, 23 May 2003 cited in Windle, supra note 81 at page 103 where it states: “Secularism neither can nor should accept signs of religious affiliation such as the headscarf, yarmulke, or cross…In a word, I am against the wearing of the headscarf at school.”
 Dahlab v. Switzerland (citation omitted) as cited in Azmi, supra note 4 at para 9.20.
 Azmi, ibid. at para 3.14.
 Ibid. at para 3.15.
 This finding offers further concern in regard to those individuals who may have a lisp or a very strong accent and their ability to teach children, especially in the situation of teaching a second language. This is an area that strongly needs to be considered in regard to the rights of the child to a full and complete education. However, since neither of these issues touches the right to freedom of religion they are beyond the scope of this paper. For readings on this topic, specifically in teaching a second language, the differences between a native speaker of the language and those who have learned it see: Vivian Cook, “Going Beyond the Native Speaker in Language Teaching” (1999) 33 TESOL Quarterly No. 2 185-209 (JSTOR).
 Azmi, supra note 4 at para 7.2.
 Knowledge of this goes back generations. See Mary S. Garrett, “The Next Step in the Education of the Deaf” Mary Kavanaugh Oldham, ed., The Congress of Women: Held in the Woman’s Building, Columbian Exposition, Chicago, U.S.A., 1893 (Chicago: Monarch Book Co., 1894) pp. 443-445 online: <http://digital.library.upenn. edu/women/eagle/congress/garrett.html> as of April 1, 2007 (refers to deaf children reading lips to understand words). See also Gerard M. O’Donoghue, Thomas P. Nikolopoulos and Susan M. Archbold, “Determinants of Speech Perception in Children after Cochlear Implantation” (2000) Lancet 356:466-68 online at: http://www.sciencedirect.com.proxy2.lib.umanitoba.ca/science? _ob=ArticleURL&_udi=B6T1B-411G2C5-&_user=1068138&_coverDate=08%2F05%2F2000&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_acct=C000051258&_version=1&_urlVersion=0&_userid=1068138&md5=f74e34e420b72e0e01a12d62b418c07a (aspect of even after implementation the use of lip reading is required in order to correctly understand).
 Azmi, supra note 4 at para 17.
 Accord Ross, supra note 35 and Azmi, supra note 4.
 Azmi, supra note 4 at para 23.
 Singh, supra note 2 at para 78.
 Oakes, supra note 57 at para 75.
 Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, 244 D.L.R. (4th) 294,  3 S.C.R. 381, 2004 CarswellNfld 322 at para 53 and 98 [cited to CarswellNfld].
 Azmi, supra note 4 at para 7.2 and at the text of this paper at pages 18-24.
 Singh, supra note 2 at para 78.
 Ibid. at para 79.
 Azmi, supra note 4 at para 16.
 Big M, supra note 17 at para 95.
 Burgess, supra note 77 at page 233.
 Jan Feldman, “Liberalism and the Challenge of Multicultural Accommodation” in David Odell-Scott, ed., Democracy: Free Exercise and Diverse Visions (Kent: The Kent State University Press, 2004) 293 at 298.
 This is a concern that is evidence on the international front as noted in Nouvel Observateur Forum, Ayrel, Langon, 23 May 2003 cited in Windle, supra note 81 at page 103 where it states: “Secularism neither can nor should accept signs of religious affiliation such as the headscarf, yarmulke, or cross.”
 Grant v. Canada (AG), 125 D.L.R. (4th) 556, 184 N.R. 346, 96 F.T.R. 239, 1995 CarswellNat 1666 (Fed. C.A.) at para 5 [Grant cited to CarswellNat].
 Rash, supra note 41 at page 140.
 Big M, supra note 17 at para 134.