Sep 27, 2015

Government of Canada v. Face Coverings: A Debate on the Limits to Freedom of Religion

Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194 (CanLII)

On September 16, 2015, the federal government decided to appeal to the Supreme Court of Canada the case of Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194 (CanLII), in which the Federal Court of Appeal ruled that it was unlawful for the Canadian government to ban new citizens from reciting the citizenship oath with a face covering.

The government has also requested a stay of the Federal Court of Appeal decision while the appeal makes its way to the SCC.

Conservative MP Jason Kenney told reporters in Calgary:

“At that one very public moment of a public declaration of one’s loyalty to one’s fellow citizens and country, one should do so openly, proudly, publicly without one’s face hidden… The vast majority of Canadians agree with us and that is why we will be appealing this ruling.”

Federal Court decision

To summarize the Federal Court of Canada case leading to the Federal Court of Appeal decision, Zunera Ishaq says that her religious beliefs obligate her to wear a niqab, a veil that covers most of her face. She also says that she will unveil herself to a stranger only if it is absolutely necessary to prove her identity or for purposes of security, and even then only privately in front of other women. After obtaining her Canadian citizenship, Ishaq was unable to take the oath of citizenship to complete the process at a citizenship ceremony because of a government policy. Citizenship and Immigration Canada’s policy manual, “CP 15: Guide to Citizenship Ceremonies,” requires individuals to remove face coverings during the ceremony.

Section 13.2 stipulates as follows:

Candidates for citizenship wearing a full or partial face covering must be identified. When dealing with these female candidates it is the responsibility of a citizenship official to confirm the candidate’s identity. This should be done in private, by a female citizenship official. The candidate must be asked to reveal her face to allow the CIC official to confirm the identity against the documents on file.

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 claimed that the government policy violated her rights under the Canadian Charter of Rights and Freedom and her religious belief in more than a trivial way by forcing her to unveil in public at the citizenship ceremony that she is required to attend. She says that the requirement to remove her face covering at this public event is unnecessary for the purposes of identity or security. She also stated:

“My religious beliefs would compel me to refuse to take off my veil in the context of a citizenship oath ceremony, and I firmly believe that based on existing policies, I would therefore be denied Canadian citizenship. I feel that the governmental policy regarding veils at citizenship oath ceremonies is a personal attack on me, my identity as a Muslim woman and my religious beliefs.”

The Citizenship and Immigration department did suggest some accommodation to prevent male participants in the citizenship ceremony from seeing her unveiled face. They offered to seat Ishaq in either the front or back row and next to a woman at the ceremony. Ishaq refused this arrangement since the citizenship judge and officers could still be male, and there could be photographers present.

The Federal Court, without concentrating on the Charter issue, agreed with Ishaq’s positions, but went further by ruling that the CIC policy is inconsistent with theCitizenship Act. The court ruled that the policy in question violates Section 17(1)(b) of the Citizenship Regulations under the Citizenship Act, which requires that a citizenship judge “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof.” According to Justice Boswell, the policy makes it impossible for citizenship judges to provide that religious freedom and therefore comply with the Citizenship Regulations .

We will see if the Supreme Court of Canada agrees.

Canadian debate over face coverings in public

However, the debate over face covering in public in Canada is still an issue that is garnering a lot of media, political and public attention.

The federal Conservatives have stated that if they are re-elected, they will re-introduce legislation banning face coverings during citizenship oaths.

Quebec has a pending bill to ban face coverings while giving and receiving public services.

Opponents to the policy and proposed legislation, both in the federal and provincial realm, believe that they go against, in Ontario attorney general Madeleine Meilleur’s words, “deeply held views on equality and tolerance for the religious beliefs of everyone in our society,” and are “inconsistent with Canadian values of inclusion and diversity.”

Alexandre Boulerice, a New Democrat MP, has proposed a pan-Canadian commission, along the lines of Quebec’s Bouchard-Taylor commission in 2007, to find a consensus on how far the country should go to accommodate minority cultural and religious practices.

The issue is being debated in the media and online with such vehemence that I do not know if any commission could result in a consensus on the limits to religious freedom in Canada. A quick survey of opinions on social media—across age, background, region, ancestry, race and other characteristics—shows a range of ideas on what is a so-called Canadian value or what inclusion, diversity and tolerance really mean.

There are reasons of practice and principle to oppose a general ban on the veil. These include a woman’s right to choose what she wears and her freedom to practise her religion. This said, freedom is not absolute in Canada. There must be a proportional balance where there is legal justification to limit individual rights, such as public security concerns among others.

Opponents of policies and legislation banning face coverings in the public service or even during a citizenship ceremony seem to put aside the understanding that freedoms under the Charter must have limits. They seem to bring the question to “To have freedom of rights or to not have freedom of rights,” which requires an absolute response.

I don’t believe it makes legal or practical sense to apply a blanket ban on face coverings. However, religious requirements should not provide a trump card against legal justifications or security considerations. Any policy and legislation addressing face coverings should include measures to accommodate reasonable religious requirements, but those individuals with religious requirements should understand and respect that there are reasonable limits to their right to religious freedom, perhaps, for example, when giving or receiving public services, and they should comply with the law or policy.

Like it or not, thousands of women in Canada today—and likely thousands more in the future—wear full or partial face coverings for religious reasons, and they are unlikely to simply stop the practice because of a law or policy or they are in a country that does not have the same belief system as them. But that doesn’t mean they are a threat to Canadian society. If Canada can demonstrate that it is possible to fairly accommodate religious dress codes without conflict or harm to national security, then we will set an example for the world—and hopefully move on to other more important debates.