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The Tories Are Still Fighting the Niqab Citizenship Court Decision

Courts and policy-makers are drawing up unneeded rules to make life hard for women wearing the niqab.

by Justin Ling
Mar 16 2015, 7:05pm

A woman wearing a niqab. Photo via Flickr user David Dennis

A seven-year resident of Canada—a woman who has proven herself fluent in English and passed a test showing that she knows about the history of residential schools and understands the concept of the equality between men and women—is being told that she can't become a citizen of Canada until she reveals her face.

Her name is Zunera Ishaq and she's going toe-to-toe with Stephen Harper to fight for her right to wear whatever she wants when she takes the oath of citizenship, even if most Canadians don't agree with her.

Ishaq wears the niqab—a veil that covers everything but a woman's eyes that some conservative Sunni scholars say is required by Islam. Government policies drawn up by the Tories in 2011 require that all would-be Canadians need to show their face when they take that oath. Earlier this year, a federal court struck that policy down.

Apparently driven by some fear that underneath their cloth these women may actually be two children standing on each other's shoulders, or that they secretly hate the Queen, the prime minister is fighting to revive that policy.

No Niqabs Policy
The citizenship policy banning niqabs required two things: that anyone wearing a face covering must prove their identity to a citizenship judge, and that the soon-to-be-Canadian must take off their face covering when reciting the oath at a citizenship ceremony.

The first part is relatively uncontroversial, and wasn't challenged in this case. Women wearing the niqab are generally amenable to removing their veil to strangers, so long as only women are present. The rules allow for that—a Citizenship and Immigration policy guide reads that confirming someone's identity "should be done in private, by a female citizenship official." That's what Ishaq did.

But when it comes for the oath, the guide reads "the candidates must be advised at this time that, they will need to remove their face covering during the taking of the oath. Failure to do so will result in the candidates not receiving their Canadian citizenship on that day."

Ishaq was getting ready for her citizenship ceremony—and was more than happy to swear an oath to the head of a Anglo-Saxon hereditary monarchy that only comes to Canada every few years—but was concerned that the policy, by forcing her to take her veil off, would either force her to betray her faith, or give up her bid for citizenship.

Ishaq wasn't the only one put in this position. According to the Federal Court decision that sparked the debate, about 100 women a year apply for Canadian citizenship while wearing the niqab.

But as Ishaq pointed out, things were working pretty well for those other women before the federal government came in and made a mess of things. So she launched a lawsuit against the policy.

"I decided to raise my voice so that I can challenge this policy, which was a personal attack on me and Muslim women like me," Ishaq told Postmedia.

Last month, she won: The judge declared the policy illegal.

"According to [Ishaq], it would be easy for a female citizenship judge or official to take those women's oaths in private if there was doubt that they recited the oath, which is what used to be done before the policy was adopted. Alternately, women like the applicant could be seated closer to the officials or have a microphone attached to them, so that the officials could hear them taking the oath," the federal judge wrote.

Ishaq and her lawyer also cleverly pointed out that the policy on the books "requires people to take the oath, not to be seen taking the oath." Further, would-be Canadians also need to sign an Oath of Citizenship form.

The government lawyers fighting Ishaq presented a bit of a confusing case.

They argued in court that the policy was not actually a law, and that officials and judges weren't actually required to enforce it. That is, the lawyers argued, the officials could have simply let Ishaq keep her niqab on.

But, they added, if Ishaq "chooses not to remove her face covering and is denied citizenship, she nevertheless retains all the benefits of her status as a permanent resident."

The government has contended that the niqab is a personal choice, not a religious one, even though there is a long history of Islamic scholars saying exactly the opposite.

The lawyers didn't address the obvious remedy: that the policy be changed to allow for women like Ishaq to take the oath among only women, so that they may remove their veil.

Accommodations for those small number of women who wear the niqab—the status quo that existed before the policies came into effect in 2011—appear to be exactly what the government is fighting.

In announcing the policy in 2011, then-Immigration Minister Jason Kenney appeared to reject the seemingly obvious solution, saying "we cannot have two classes of citizenship ceremonies."

Jason Kenney. Photo via Flickr user michael_swan

What Not To Wear
The federal court decision has sparked a row that has split along odd lines—the anti-niqab camp is a strange alliance of conservative, second-wave-type feminists, conservatives, and secularists. Many have characterized this as a cynical ploy to win votes. The Harper government's nationalistic chest-thumping plays into that point.

"It is offensive that someone would hide their identity at the very moment where they are committing to join the Canadian family," the minister of immigration's office told Maclean's.

The Canadian Press has rated that talking point "full baloney."

The minister, Chris Alexander, hasn't gone full bore on the matter. Last month, he sent an email to Conservative supporters—where he, or whoever wrote the email under his name, confused "hijab" and "niqab"—asking them to sign a petition affirming that letting women wear whatever they want at a citizenship ceremony is "not the way we do things here." The email added that, in order to prove that "women are full and equal members of society," the government has to force them to take their niqab off.

"The requirement of Citizenship and Immigration Canada to remove full face coverings during citizenship ceremonies is not onerous and is consistent with the customs and conventions of an open liberal democratic society such as ours," the prime minister piled on.

NDP leader Thomas Mulcair said that the prime minister's comments were "undignified." Liberal leader Justin Trudeau, meanwhile, has spent the past week honing in on it.

"For me, it is basic truth that prime ministers of liberal democracies ought not to be in the business of telling women what they can and cannot wear on their head during public ceremonies," Trudeau said in a speech last week.

The Conservatives do have the Bloc Quebecois on their side, however. That is no coincidence: both parties are banking on rural, pure laine Quebecois getting behind their anti-niqab crusade. The province, especially those Eastern Township ridings that both parties are aggressively targeting, tends to be significantly less in favour of accommodations for religious minorities.

The whole thing has led to some mockery, however, with the snarkiest of Twitter taking to the hashtag #DressCodePM.

The feminist messaging from the Conservatives, however, belies the fact that these women are not the damsels in distress that they've made out to be.

According to a 2014 study from the Canadian Council of Muslim Women, which interviewed 81 niqab-wearing women, those in Canada who wear the garment tended to be "mobile and socially active, wished to work, and had a fairly high level of education."

Not a single woman indicated that they were being forced into wearing the niqab (though seven percent said a spouse "encouraged" them to do so, while another eight percent said the encouragement came from a friend). A total of 78 percent said it was either a religious obligation or a part of their Muslim identity.

The women interviewed included engineers, consultants, students small business owners, and web designers. While many were homemakers, most said they wanted to work at some point.

Further, the report found that "all of the women... believed that there were instances in which they should show their faces for identification purposes and were not opposed to the idea."

Former Quebec premier Pauline Marois, who championed the Charter of Values. Photo via Flickr user Montreal metropole culturelle

Not Just Harper
While scorn has been heaped on the prime minister and his ministers, they're not the only ones who are pushing an anti-niqab agenda.

Ex-Quebec Premier Pauline Marois, of course, proposed a Charter of Values to ban all sorts of religious symbols—and the Liberals who defeated her have promised a toned-down version of the Charter. A Quebec judge recently made waves for telling a woman to remove her hijab in the courtroom.

It's not just Quebec, either. Canadians as a whole are increasingly wary of immigration. Two-thirds support the government's insistence on banning niqabs in citizenship ceremonies.

A slew of Mosques nationwide have also been vandalized in recent months.

Even the Supreme Court, supposedly a bastion of liberal bias, ruled against a woman's request to testify with her niqab on against the men who allegedly sexually assaulted her. (Justice Rosalie Abella dissented, arguing that doing so would discourage the woman from testifying in her own defence, and that would be more harmful than depriving the judge and jury to look at her face.)

Of course, the federal government is also pushing through Bill C-51, which Muslim groups say will disproportionately affect them.

The Canadian Council of Muslim women say the hysteria over the niqab, specifically the ban, "provokes, exploits, and sustains hate and fear," and puts Muslim women in the "cross-hairs."

They might not be wrong. According to national police data from 2012, Muslim and Middle Eastern residents are more likely to be the victims of hate crimes. Five percent of hate crimes were motivated by the victim's Arab/West Asian ethnicity (despite them being less than two percent of the population), while another three percent of the crimes were driven by hatred of Islam.

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