What the ruling on niqab ban was really about


Shelina Ali Logo PhotoVoter turnout during the election was estimated at 68.5%, the highest since 1993. Justin Trudeau and the Liberal Party, campaigning on a platform of real change, won a clear majority of seats and 39.5% of the popular vote.
Canadians showed they wanted to uphold and participate in the democratic system.
One issue that, for the wrong reasons, garnered a great deal of attention was the Federal Court of Appeal decision on whether an individual could wear the niqab while taking their citizenship oath. Stephen Harper drew the other party leaders into a polarized dialogue about Canadian values, women’s rights and religious freedom, a misleading debate, considering neither the Federal Court nor the Federal Court of Appeal addressed those issues in their decisions.
The decisions of both courts on wearing a niqab during a citizenship oath was grounded in the fact that the Harper government tried to circumvent the law by passing “mandatory” policies – in doing so, the Conservatives disregarded the requirements of a democratic system based on the rule of law.
Citizenship ceremonies are governed by the Citizenship Act. The Harper government’s niqab ban was not an amendment to the act but rather a change in Citizenship and Immigration Canada’s policy manual. The act’s regulations require a citizenship judge to “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof.”
In 2011, the Harper government amended the policy, requiring individuals to remove any face coverings during the citizenship oath. If an individual did not, they would have the opportunity to attend a different ceremony and at that ceremony would be required to remove their face covering to take the oath.
If the individual failed to remove their face covering, the policy stipulated that she would not receive a citizenship certificate – the individual would be denied citizenship and the citizenship judge would not be able to exercise any discretion in denying citizenship.
Justice Boswell of the Federal Court of Canada issued a decision in February on an application to the court by Zunera Ishaq which sought a declaration that the policy prohibiting face coverings during the citizenship oath was inconsistent with the act. Boswell said the policy put in place by the immigration minister was intended to be mandatory, meaning citizenship judges would not have discretion to deviate from the requirements of the policy. This was contrary to discretionary powers given to citizenship judges under the act.
The judge found that the policy prevented a citizenship judge from complying with the regulations which require citizenship judges to administer the oath in a manner that allowed for the greatest possible freedom in the religious solemnization process.
Boswell did not make any findings with respect to constitutional arguments, stating it would not be appropriate to decide constitutional issues in this case when the application could be decided on non-constitutional grounds.
In the midst of a lengthy campaign, the Federal Court of Appeal denied the Harper government’s appeal.
The Harper government replied that it would appeal the decision and that if re-elected it would reintroduce legislation requiring removal of face coverings during the oath part of the citizenship ceremony. According to Harper, the niqab did not reflect Canadian values, and was “offensive.”
Trudeau responded that Harper’s position demonstrated a lack of respect for people’s rights and freedoms, while NDP Leader Thomas Mulclair described the issue as a “weapon of mass distraction” and said “no one has the right to tell a woman what she must – or must not – wear.”
While Trudeau’s and Mulclair’s rights-based statements are admirable, their response shows just how much they let Harper shape the debate, to the frustration of many Canadians. The pressing issue was not actually about upholding women’s rights or religious freedom but about upholding a democratic system where leaders are accountable to the rule of law.
Harper tried to take a shortcut through that system of accountability and once again, the court said no. We can only hope the waste of valuable judicial resources used to keep Harper in check will not continue under Trudeau.

Published with permission of the writer and rabble.ca, an alternative Canadian online magazine.