What the court decision on the niqab ban was really about

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Voter turnout during the last federal election is estimated to be 68.5 per cent, the highest voter turnout since 1993. Justin Trudeau and the Liberal Party campaigned on a platform of promising real change, which resonated with voters, giving the Liberals a clear majority of seats in the House of Commons and 39.5 per cent of the popular vote. Canadians showed that they wanted to uphold and participate in the democratic system. 

One issue that, for the wrong reasons, garnered a great deal of attention as a hot button election topic 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 the issue of 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.  

History of the court challenge to the niqab ban 

Citizenship ceremonies are governed by the Citizenship Act (the Act) and its regulations. The Harper government's ban on individuals wearing a face covering such as the niqab is not a result of an amendment to the Act or its regulations, but rather a change in the Citizenship and Immigration Canada's (CIC) policy manual entitled Guide to Citizenship Ceremonies (the Policy) (Note the Policy Manual does not appear to be available on CIC's website). Section 17(1)(b) of the Act's regulations requires 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 December of 2011, the Harper government amended the Policy, requiring individuals to remove any face coverings during the oath portion of the citizenship ceremony. If an individual did not do so, they would be given 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, once again, failed to remove their face covering, the Policy stipulated that they 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 2015 on an application to the court by Zunera Ishaq which sought, among other things, a declaration that the Policy prohibiting face coverings during the citizenship oath was inconsistent with the Act and its regulations. According to Justice Boswell, 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 the discretionary powers given to citizenship judges under the Act's regulations.    

Justice Boswell found that as a result, the Policy prevented a citizenship judge from complying with section 17(1)(b) of 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. 

Justice Boswell did not make any findings with respect to constitutional arguments, stating that 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 election campaign, the Federal Court of Appeal denied the Harper government's appeal of Justice Boswell's decision. The court stated:

"While we do not necessarily agree with all the reasons given by the Federal Court, we see no basis to interfere with the Federal Court's finding as to the mandatory nature of the impugned change in policy as this finding is overwhelmingly supported by the evidence."  

The court also confirmed that it was unnecessary to deal with Charter issues, in part to expedite issuing the decision so that Ms. Ishaq could obtain citizenship and vote in the federal election.

The misguided election debate

In response to the Federal Court of Appeal decision, the Harper government stated that they would appeal the decision, and that if re-elected, they would re-introduce legislation requiring the removal of face coverings during the oath part of the citizenship ceremony. According to Mr. Harper, the niqab did not reflect Canadian values, and was "offensive."

Mr. Trudeau responded by stating that Mr. Harper's position demonstrated a lack of respect for people's rights and freedoms.

Mr. Mulclair described the issue as a "weapon of mass distraction," but nevertheless framed his response to the issue as one of respecting individual rights, and issued  the  statement that "no one has the right to tell a woman what she must -- or must not -- wear."  

While Mr. Trudeau and Mr. Mulclair's rights-based statements are admirable, their response shows just how much they let Mr. Harper shape the debate, to the frustration of many Canadians. The pressing issue, as the Federal Court of Appeal confirmed, was not actually about upholding women's rights or religious freedom, but about upholding a democratic system where leaders were accountable to the rule of law. Mr. Harper once again tried to take a shortcut through that system of accountability, and once again, the court said no. We can only hope that the waste of valuable judicial resources used to keep Mr. Harper in check will not continue under Mr. Trudeau.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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