Ruling makes niqabs an election issue

theglobeandmail.com
Sept. 18, 2015
By Sean Fine and Gloria Galloway

The Conservative Party is seeking to suspend a court ruling allowing a Pakistani immigrant to wear her niqab while taking the oath of citizenship, while it asks the Supreme Court to hear an appeal. The move thrusts the wearing of Muslim face veils in citizenship ceremonies squarely into the federal election.

“As the Prime Minister has said, most Canadians find it offensive that someone would hide their identity at the very moment where they are committing to join the Canadian family,” Denis Lebel, who is Stephen Harper’s Quebec lieutenant and a candidate in Lac-Saint-Jean, said in announcing the government’s intent to seek a stay of the Federal Court of Appeal ruling in the niqab case. He added that NDP Leader Thomas Mulcair and Liberal Leader Justin Trudeau “owe Canadians an explanation for why they think someone should be able to hide their identity while taking the Oath of Citizenship.”

He repeated the government’s promise to bring in a new law in the first 100 days of a new Conservative government requiring that faces be uncovered during the taking of the citizenship oath.

On Tuesday, the Federal Court of Appeal ruled 3-0 that the government’s policy banning the wearing of face veils at citizenship ceremonies is illegal. It was an unusual ruling in that the court did not take weeks or months to deliberate, but gave its decision from the bench, after a hearing on the issue. It said it wished to expedite matters so that Zunera Ishaq, who has had permanent-resident status since 2008, can vote in the Oct. 19 election.

The court did not decide the case on the basis of Charter rights, or even on the basis of a Citizenship Act requirement that citizenship judges show respect for religious belief. Instead, it said in brief written reasons issued this week that the rule was illegal because, according to the Citizenship Act, any new rules for the ceremonies need to have been approved by cabinet. But the face-covering rule was merely a policy change initiated by then-immigration minister Jason Kenney in 2011.

The new rule attracted national publicity and Ms. Ishaq became concerned and asked the Federal Court last year to block the rule in her case so she could take the citizenship oath. A Federal Court judge agreed with her position, and did so.

A lawyer for the federal government had conceded during the appeal court hearing that, if the rule was mandatory, it would have been an illegal limit on the citizenship judge’s discretion. But it said that citizenship judges still have the freedom to allow face coverings, and that the case was “speculative” - that Ms. Ishaq had no right to bring the case until she went to a citizenship ceremony and a judge required her to remove the face-covering.

The Federal Court of Appeal said the evidence (such as the wording of the government policy) showed, however, that the policy was mandatory. All three judges on the appeal court - Justices Mary Gleason, Wyman Webb and Johanne Trudel - were appointed by the Harper government. (Justice Trudel was even on a list of the government’s top six candidates for a 2013 opening on the Supreme Court of Canada.)

The government’s chance of succeeding in the appeal is small, according to University of Ottawa law professor Carissima Mathen. “The law is very clear. I would be shocked if the Supreme Court said the minister had the authority to give this directive.”

Mr. Trudeau denounced the Conservative government’s court action as “completely irresponsible.”

“The woman at the centre of the court case must still identify herself before taking the oath of citizenship, so it’s not a question of identification, it’s a symbolic issue,” he said while campaigning in his home town of Montreal. “Canada defends the rights of minorities. We respect people’s rights.”

Mr. Mulcair, who was campaigning in Regina, said the court decision this week makes it clear that the Conservative government was trying to exercise powers it does not have.

“People have to understand that it is required, for a woman wearing a niqab, to identify herself by removing her face covering. (Women in niqabs are given an opportunity to remove their veil in a private space in front of a female official.) “We will respect the courts...that are there to protect religious freedoms.”

The government has a choice - it can ask for a stay directly from the Supreme Court, or from the Federal Court of Appeal, according to Lorne Waldman, a Toronto lawyer representing Ms. Ishaq. A government source said it will go to the Federal Court of Appeal for the stay. The government also needs to seek permission from the Supreme Court to appeal the ruling.

Mr. Waldman said that while he hasn’t seen public opinion polls on the issue, “The Canada I grew up in, the Canada that I love, and the Canada that I struggle every day to maintain is a Canada that respects...the rights of individuals to express themselves.”

Nik Nanos, the president of Nanos Research, says surveys conducted by his firm suggest Conservative supporters and Quebeckers are less willing than other Canadians to make special accommodations for immigrants and visible minorities.

By pressing ahead with the appeal to the Supreme Court, the Conservatives are sending out a signal of reassurance to their base, said Mr. Nanos. “They know that their position on this issue resonates with their core vote. So this is not about growth, and it’s not about persuading Canadians who are unsure or who are voting for other parties,” he said.

“I think they are probably realizing that the numbers aren’t going to move until the very end and that they have to focus on holding to what they have currently and this is part of that strategy,” he said. “And it’s best to do that now rather than later.”