Why Ottawa’s ban on veils at citizenship ceremonies is unlikely to survive

‘It’s not in accordance with any interpretation of Canadian law’

An about-face on citizenship

Johnathan Adam Davies/National Pictures/Keystone Press

Fierce debates over religious symbols and beliefs are nothing new in Canada. Should a Mountie be allowed to wear a turban? Should a Sikh boy be permitted to carry a symbolic dagger in school? Should Hutterites who disapprove of photography on grounds of faith be excused from having their pictures on their driver’s licences? These controversies all ignited heated disputes over cultural sensitivities and legal rights. But none arguably has generated reactions quite so intense as Muslim women who cover their faces by wearing the niqab or burka—a practice Immigration Minister Jason Kenney has now challenged on unusually sweeping grounds.

Kenney decreed this week that immigrants who wish to become Canadians will no longer be allowed to keep their faces covered while taking the citizenship oath. He made the move after a Conservative MP from a Toronto suburb reported seeing four burka-clad women taking part in a recent group citizenship ceremony. Kenney said it’s hard for a presiding judge to tell if a veiled woman is really speaking the oath. But that practical quibble was clearly secondary to him. “It is,” he said, “a matter of deep principle that goes to the heart of our identity and our values of openness and equality.”

Past clashes of this sort have focused on balancing religious rights against pragmatic policy considerations. In 2009, for instance, the Supreme Court of Canada ruled that a small Hutterite community’s objection to photography was trumped by the government’s need to have a secure system for driver’s licences. Cases involving the Sikh kirpan have focused on minimizing the danger of the ceremonial daggers being used as weapons. When it comes to veils and citizenship ceremonies, though, Kenney didn’t dwell much on practicalities. He said allowing women “to hide their identity from us, precisely when they are joining our community, is contrary to Canada’s proud commitment to openness and to social cohesion.”

While he’s likely to win popular approval for the move, some legal experts predicted Kenney will lose when his new rule is, all but inevitably, challenged in court. “It’s not in accordance with any interpretation of Canadian law,” says University of Toronto law professor Denise Réaume. She contrasted Kenney’s sweeping position with the narrower arguments being made in a related case now before the Supreme Court. A Muslim woman is fighting for the right to keep a veil over her face while testifying against two men she accuses of sexually assaulting her. The counter-argument that she should remove her veil, Réaume says, is based on the “plausible view among lawyers that it’s helpful to see the witness’s face,” not on the sort of broad cultural objection Kenney raises.

Kenney also rejects the claim that keeping veiled is, for some strict Muslims, “somehow a religious obligation.” But University of Manitoba law professor Karen Busby says the courts have ruled in past cases that only the sincerity of an individual’s belief matters, not anyone else’s interpretation of that person’s religious obligations. As a personal matter, Busby sees the niqab much as Kenney does. “To me, it’s not a religious symbol, but a sign of the oppression of women, for sure,” she says. “But that doesn’t really matter. The women wearing it don’t see it that way.”

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