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Banning the Niqab Undermines Canadian Values

10/16/2015 02:46 EDT | Updated 10/16/2016 05:12 EDT
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Woman wearing hijab

It is extraordinary and unprecedented that a federal political party would want to wage, as part of its re-election campaign, a war on niqab-wearing Muslim women. The sequence of events that led up to the recent Federal Court of Appeal decision suggest that events played out exactly as Conservative strategists planned or, at least, as they would have wished.

It is odd that a prime minister purporting to be concerned with women's equality would end up in such a place. This is because women's equality has never been the real concern. Rather, something called "Canadian values" are at stake. It is about "the way that we do things here," to quote Prime Minister Stephen Harper.

We know this because of litigation launched by the brave Zunera Ishaq. Ms. Ishaq challenged Minister Jason Kenney's directive of December 2011 that women 'wearing full or partial face coverings must be identified' during the taking of the citizenship oath.

Her lawyers made two arguments. First, that this ran afoul of her religious freedoms guaranteed by the Canadian Charter of Rights and Freedoms. Second, that the policy directive was inconsistent with the law and regulations governing citizenship ceremonies, which were conducted by citizenship judges who administer the oath.

The federal government lawyers argued that infringement of her religious freedom was trivial and the policy objective reasonable, namely, to ensure that the oath is audibly said by all new citizens.

The Federal Court agreed, in February 2015, with Ms. Ishaq on the second ground: the minister had no authority to interfere with the statutory discretion accorded to citizenship judges. There was no requirement of visual confirmation during the taking of the oath and, moreover, the policy would have made it impossible for a mute person and a silent monk, in addition to niqab wearing women, to take it. There was no need to even consider the Charter argument.

Rather than amend the legislation or issue new regulations, which would have provided an immediate fix of the second ground, the Conservative government chose to appeal Justice Boswell's decision to the Federal Court of Appeal. To their credit, three justices of the Federal Court of Appeal issued reasons the very same day the government's appeal was heard, denying the appeal in order that Ms. Ishaq could become a citizen in time to vote in the upcoming federal election.

To date, four judges have found the government had no authority to unilaterally alter the citizenship oath rules. The Conservative government still would not take no for an answer. They sought leave to appeal to the Supreme Court of Canada and also an order delaying the Federal Court declaration until their appeal had been considered. In order to stay an order of a court, a party must show that it will suffer irreparable harm if an order were immediately carried out.

The government argued that there would be irreparable harm to the public interest, namely, to the Canadian values of publicity, openness, and community with others. These are generalizable harms -- if harms at all -- hardly the types of harms that warrant a stay of a court order. Predictably, again, the Conservatives lost.

As Conservatives stand their ground, the Prime Minister has chosen to raise the stakes by contemplating, in a CBC television interview, a ban on niqabs (borrowing from the latest Quebec version), for federal public sector employees. The Prime Minister also appeared to express no specific concern in that interview for those women who have been assaulted wearing headscarves and face coverings.

His response was that the Conservatives have been the most vocal defenders of victims of crime and that violence against Muslim women should not be an excuse to "discredit legitimate public debate." Not once in this context has the Prime Minister expressed any interest in talking about religious freedom or vindicating the interests of vulnerable minority women.

There has been no talk of the Charter problems that the government's policy proposals will attract. There has been no mention of how, throughout much of its history, Canada has been a place that tolerates religious, linguistic and cultural difference. These, apparently, do not represent Canadian values. According to the Prime Minister, that is not the way we do things here.

David Schneiderman is a professor of constitutional law at the University of Toronto. He is the author of Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture.

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