Justin Trudeau and the niqab

What Justin Trudeau says and what the Federal Court said
(Sean Kilpatrick/The Canadian Press)
(Sean Kilpatrick/The Canadian Press)

Liberal Leader Justin Trudeau stood and said Prime Minister Stephen Harper’s side was being divisive, then Harper stood and said that it was Trudeau who was being divisive.

There was the semblance of a question here—about when the government’s budget will be presented—but mostly, Trudeau wanted to segue from his speech of the night before. So he made allusions to the remarks of Conservatives, then wondered when the government might puts its energies toward new economic policy. And that gave Harper an opportunity to respond to Trudeau’s remarks of Monday evening.

The two went back and forth in French, then the Prime Minister switched mid-answer to English, presumably, for the sake of ensuring that what he had to say about the Liberal leader would be most understood.

“However, the leader of the Liberal party continues to bring up his position on the niqab, not seeming to understand why almost all Canadians oppose the wearing of face coverings during citizenship ceremonies,” Harper said, proceeding to jab his finger assertively.

“It is very easy to understand. We do not allow people to cover their faces during citizenship ceremonies. Why would Canadians, contrary to our own values, embrace a practice at that time that is not transparent, that is not open and, frankly, is rooted in a culture that is anti-women? That is unacceptable to Canadians, unacceptable to Canadian women and that is why this government—”

The Prime Minister had exceeded his time limit, so the end of that sentence is officially lost. The Conservatives stood to applaud. So, too, perhaps notably, did Bloc Québécois MP Louis Plamondon. At the use of the phrase “anti-women,” Trudeau had reacted in his seat as if Harper had said something he shouldn’t have. (As if this particular debate did not cover enough ideas already, apparently we can now add how to parse what constitutes “anti-women.”)

“This is the crassest kind of politics, and I was proud to denounce it last night,” the Liberal leader told reporters afterward.


Paul Wells: A Liberal take on liberty

Interview: Jason Kenney responds to Justin Trudeau’s speech

Trudeau’s speech in Toronto was at least more interesting than the usual fare—another interesting moment in a consistently interesting political run. In places, it is a lovely tribute to Canadian exceptionalism. As a statement of political principle, it is potentially useful. On the niqab, it is a significant engagement with philosophy, religion and public policy.

“You can dislike the niqab. You can hold it up it is a symbol of oppression. You can try to convince your fellow citizens that it is a choice they ought not to make. This is a free country. Those are your rights,” he said. “But those who would use the state’s power to restrict women’s religious freedom and freedom of expression indulge the very same repressive impulse that they profess to condemn. It is a cruel joke to claim you are liberating people from oppression by dictating in law what they can and cannot wear.”

Had he moved on then, he would have been on somewhat surer footing today (though perhaps his speech would have been less noted). But then came these next two sentences.

“But what’s even worse than what they’re saying is what they really mean. We all know what is going on here. It is nothing less than an attempt to play on people’s fears and foster prejudice, directly toward the Muslim faith,” he said.

And then came these four sentences.

“This is not the spirit of Canadian liberty, my friends. It is the spirit of the Komagata Maru. Of the St. Louis. Of ‘none is too many.’ ”

Here, Trudeau brought infamous prejudice and hardship to bear on a very serious allegation.

Even if Trudeau did not quite declare an equation—the phrasing of “the spirit of”allows for a fairly wide interpretation of how the niqab might relate to historic events—his invocation of great shame implied great shame and invited complaints about his perspective and fairness and tone. Mind you, a debate about current attitudes toward Muslims as compared to previous moments in our history wouldn’t necessarily be a bad thing; Trudeau’s references might be found unwarranted, but it’s generally useful to seek perspective. (Unfortunately for the Conservatives, whatever grounds they had to loudly lament Trudeau’s analogical perspective were trampled by the Public Safety minister’s decision to invoke the Holocaust this morning to defend Bill C-51. I look forward to a debate about which of these analogies is least justified.)

But even then, an accusation of fostering prejudice is nearly as serious an accusation as one political figure can level against another.

It would be easier to say Trudeau had crossed a line if there were a more obviously discernible line at this point—though Liberals shouldn’t comfort themselves by how sharply politics has been practised by others. His accusation rests on intent, and the evidentiary standard for findings of guilt in that regard should be high. Of course, for many, how one feels about his accusation likely depends on how one feels about him and how one feels about the government. As simple politics, it seems plausible that last night’s speech was, and will be, a net positive: the Liberal leader planting a flag, setting up a contrast of his choosing, and putting the burden on the Conservatives to defend themselves. Or perhaps the public will side en masse with the government’s position here. Jason Kenney used 11 tweets today to defend the government’s basic commitment to inclusion and to lament Trudeau’s tone. (The New Democrats are fussing over how Trudeau can square this speech with his position C-51.)

It is actually on the policy itself that Trudeau has the clearest advantage, and it is unfortunate for the Conservatives that what they have to defend is so problematic.

It would seem useful here to turn to the actual ruling of the Federal Court in the case of  Zunera Ishaq, which overturned the government’s attempt to ban the wearing of the niqab during the citizenship oath. What undid the government’s position was simple incoherence: The policy directive by the minister, Jason Kenney in his previous portfolio, conflicted with the regulations that govern the citizenship process. So while the directive demanded that the niqab be removed during the saying of the oath, the regulations instruct the citizenship judge to allow “the greatest possible freedom in the religious solemnization or solemn affirmation thereof.” The regulations also do not require visual confirmation that an oath has been sworn, only that the applicant sign her name to a certificate bearing the oath. In the case of a discrepancy between the minister’s directive and the regulations, the judge ruled that the regulations took precedence.

And then there is paragraph 30 of the ruling: “The Respondent argues that this application is premature. In its view, the Policy is not mandatory and citizenship judges are free not to apply it.”

Unless the judge has misunderstood the arguments, this seems a remarkable concession by the government. One imagines the government’s lawyers might have thought they had a novel argument for the case’s dismissal—that the ban on the niqab was not mandatory and, therefore, “there is no way to know what would have happened, had the Applicant attended the ceremony and refused to uncover her face.” But, as the judge noted, this clashed with both the public statements of the minister and private statements of government officials.

On those grounds, the government’s claim of an option was dismissed by Justice Boswell. But that doesn’t quite absolve the government of the contradiction. In the House today, the Prime Minister said, “We do not allow people to cover their faces during citizenship ceremonies.” But in the court, the Prime Minister’s government would seem to have argued that we do allow for people to cover their faces, so long as the presiding citizenship judge agrees. So which is it? And if it’s the former, why were the government’s lawyers arguing the latter?

(I’ve asked Immigration Minister Chris Alexander’s office for an explanation and will post what I receive.)

Even without that contradiction, there would seem to remain very practical issues. All applicants for citizenship apparently sign a written declaration of the oath. As Justice Boswell noted, Ishaq was willing to remove her niqab in private to confirm her identity. The judge also noted that “any requirement that a candidate for citizenship actually be seen taking the oath would make it impossible not just for a niqab-wearing woman to obtain citizenship, but also for a mute person or a silent monk.” Ishaq’s lawyer argued “that there is no rational connection between ensuring that the oath was taken and visual inspection, since such a method could only confirm that the participants’ mouths were moving; citizenship officials are not lip readers.”

If the concern here is that a woman in a niqab cannot be seen taking the oath, could a private oath-taking not be arranged? If the concern here is that a woman in a niqab cannot readily be heard taking the oath, could an official not stand within earshot of her?

Put another way: Is it not possible to agree on a reasonable arrangement that preserves religious freedom?

Perhaps not, if you wish to assert nothing more than a principle of additional communal declaration that you believe should trump religious freedom. If so, you might want to suggest that the government put that requirement into regulation.

The Conservatives were quite proud to champion this ban a month ago in a data-mining letter to supporters. “We believe that when someone becomes a Canadian citizen, [he or she] should embrace our culture and everything that makes us proud to be Canadian,” read the letter signed by Immigration Minister Chris Alexander. “That should be done without interference, freely and openly.” This was meant to celebrate not only the desire for a ban on the niqab, but the government’s intention to appeal the Federal Court ruling.

The legal basis for the government’s position will thus be tested again and, in the meantime, the practical and philosophical basis for the ban should be tested anew in the public realm. It was on this point that Trudeau was strongest. And while we debate religion and feminism and all the rest, we shouldn’t entirely forget about the practical questions raised by the court’s ruling.

But that the particular policy in question seems almost entirely symbolic is perhaps fitting, if we are now in a discussion about what it all means.