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Niqab Ruling Appeal Dismissed By Federal Court

09/15/2015 12:45 EDT | Updated 09/15/2016 05:12 EDT

OTTAWA — The courts handed the Harper government another policy rebuke Tuesday when the Federal Court of Appeal quashed its attempts to ban face coverings at citizenship ceremonies.

But the Conservative campaign vowed to fight back, saying uncovered faces at such ceremonies were "consistent with Canadian values of openness, social cohesion, and equality."

The latest chapter in the Conservatives battle with the courts unfolded Tuesday when the Federal Court of Appeal dismissed the government's appeal of an earlier Federal Court ruling that said banning face coverings at such ceremonies was unlawful.

On Tuesday, the three justices ruled from the bench, saying they wanted to proceed quickly so that Zunera Ishaq, the woman who initially challenged the ban, can obtain citizenship in time to vote in the Oct. 19 federal election.

Appeal Justice Mary Gleason, speaking on behalf of her two concurring judges, said her court saw no reason to interfere with the earlier lower court ruling.

Ishaq, a 29-year-old woman with devout Muslim beliefs who came to Ontario from Pakistan in 2008, refused to take part in a citizenship ceremony because she would have to show her face. The swift ruling left her almost speechless, but she said she looks forward to voting.

One of her lawyers, Marlys Edwardh, said the Immigration Department would be contacted this week so she could attend a citizenship ceremony — accompanied by her lawyers "just in case."

A spokesman for Conservative Leader Stephen Harper expressed regret over the court's ruling.

"We understand the government is considering all legal options," spokesman Stephen Lecce said in an emailed statement from the Conservative campaign.

"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. Both Justin and Thomas Mulcair are offside with Canadians on this issue."

The Conservatives would re-introduce a law banning face covering and their campaign will have more to say about the issue in the coming days, Lecce said.

The ban on face coverings sparked a bitter debate in the House of Commons when it was first announced, and Tuesday's ruling looked certain to place the issue firmly on the federal election campaign agenda.

Earlier Tuesday, Justice Department lawyer Peter Southey told court that the government never meant to make it mandatory for women to remove their face coverings for citizenship ceremonies — a position that left both the judge and Ishaq's lawyers scratching their heads.

The admission appeared to be a climbdown from the Conservative government's past position on the issue.

The controversial edict was a regulation that had no actual force in law, Southey told the hearing.

"It indicates a desire in the strongest possible language," Southey said — an argument that appeared to come as a surprise to Justice Johanne Trudel.

"I cannot see how this is not mandatory," Trudel said during the hearing.

Southey later told the court that the immigration minister was conceding that he "could not impose a mandatory rule in a guideline" for the purposes of this appeal.

Lorne Waldman, another of Ishaq's lawyers, dismissed Southey's argument, saying everyone from former immigration minister Jason Kenney, to his successor Chris Alexander and even Harper have said in public they see it as a mandatory policy.

Reading from internal government emails, Waldman told court there was not "one iota of discretion" within the policy.

"Everything says mandatory, no discretion — that's the facts of the case."

Outside court, Ishaq questioned the federal government's new line.

"If it's not mandatory I would simply say, why they are fighting for it? Just let me go," she said.

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