The niqab election

At least unless the Supreme Court upholds a ban on the niqab during the citizenship oath, our daughters will remain free of arbitrary rule over their attire.
TORONTO, ON - FEBRUARY 12: Zunera Ishaq, woman who launched the legal challenge against Ottawa’s niqab ban at citizenship oath-taking ceremony poses for pictures in her home. Credit: Vince Talotta/Toronto Star/Getty Images

On Thursday night, Stephen Harper announced that he would never tell his “daughter that a woman has to cover her face because she is a woman.”

It is good to know that the Prime Minister will defend a woman’s right to choose her own attire. If the government attempted to regulate that women cover their faces on certain occasions, he would presumably object. If the government introduced a new law dictating such a rule for attire, he would surely oppose it.

But his belief in such freedom has a particular limit. His tolerance for individual discretion ends at the citizenship oath. It is the moment of swearing that oath at which Mr. Harper’s willingness to accept an individual’s choice of dress ends. In that moment, Mr. Harper believes that the government has the right, indeed the duty, to regulate attire.

It is surely tempting to argue that the niqab is a distraction, that there are more vital matters of public policy to be discussed. “Mr. Harper is trying to hide his record behind the niqab,” NDP leader Tom Mulcair posited during Thursday night’s debate. “What is the impact on the economy of the niqab?” asked Green leader Elizabeth May, facetiously. “What is the impact of the niqab on climate change? What is the impact of the niqab for the unemployed?”

Beyond generating work for the justice department’s lawyers—those whose win-loss records have taken a battering in recent years—the impact of the niqab on the economy is indeed likely to be zero. But if the Prime Minister and his government are intent on dwelling upon the niqab, then it is worth dwelling upon that fixation. Indeed, to not dwell upon it would be to deprive the government’s position of the scrutiny it deserves—the sort of scrutiny that should be applied to any election pledge.

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At the outset, it should be understood that the niqab debate, or at least this particular niqab debate, is not about the niqab. Whether you like or agree with the niqab is irrelevant. How you would feel about your daughter wearing the niqab is besides the point. You are entitled to your opinion and, given the fraught politics and cultural curiosity that surround the garment, there is a discussion worth having about the niqab, preferably including the voices of the women who wear it. But for the purposes of whether or not the niqab should be banned during the swearing of the citizenship oath by new Canadian citizens your opinion is of no applicability. Proponents of a ban might want to note that, according to public opinion surveys, a large majority of Canadians do indeed oppose the wearing of the niqab during the oath, but this is irrelevant unless you believe that the rights of individuals should be determined by majority rule, that the extent of minority rights are at the whim of the majority.

One’s rights are what is at issue here. And on that note it is fun to note that on Thursday morning, about nine hours before Stephen Harper made his declaration about a women’s sartorial freedom, the Conservatives announced that, if they continue to govern long enough to do so, they will have the federal government purchase John Diefenbaker’s childhood home and declare it a national historic site. Among the accomplishments the Conservatives recognized in explaining the reason for such an honour was Diefenbaker’s Bill of Rights, which acknowledged, among other rights, the freedom of religion. “It will give to Canadians the realization that wherever a Canadian may live, whatever his race, his religion or his colour,” Diefenbaker said in 1960, “the Parliament of Canada will be jealous of his rights and will not infringe upon those rights.”

Diefenbaker’s Bill of Rights was ultimately overtaken by Pierre Trudeau’s Charter of Rights and Freedoms and it is those Charter rights that are relevant (even if a Federal Court judge actually overturned the government’s policy on the niqab because he found it contradicted the Citizenship Act). As Zunera Ishaq‘s lawyers argue in their factum for the Federal Court of Appeal, “The impugned Policy forces the Respondent into an impossible choice: violate a sincerely held religious belief in a significant and material manner, or give up obtaining the Canadian citizenship that she is otherwise entitled to. And it forces this choice on her for no good reason.”

There are no practical justifications for the ban. Confirming an individual’s identity can be done privately before the oath ceremony. Confirming that an individual has said the oath—the practical consideration that Jason Kenney first claimed when he introduced his ban—can be done by having an official stand within earshot.

Jason Kenney has asserted that, based on his consultations, the wearing of a niqab is not properly grounded in religious theology. But we should surely not wish for a country in which ministers of the crown are the arbiters of what constitutes a proper expression of faith. The Supreme Court has set out parameters for legally recognized religious belief (in Syndicat Northcrest v. Anselem and R. v. N.S), and if the case of the niqab ban ever has to be adjudicated on Charter grounds the sincerity of Ishaq’s belief could be tested, but I might suggest that a decent and confident country should give the benefit of the doubt to the claimant unless the welfare of others or the country is somehow threatened.

In Alberta v. Hutterian Brethren of Wilson Colony, the Supreme Court upheld a law that was being challenged on the grounds of religious freedom, but in that case the Court found a “pressing and substantial” goal—specifically, minimizing the potential for identity theft associated with driver’s licences. (I remain thankful to Emmett Macfarlane for assisting my research of relevant jurisprudence.) There is no such goal here. There is only symbolism.

It is, we are told, about the “public nature” of the oath and proudly demonstrating loyalty to the country. Or the “Canadian values of openness and the equality of women and men.” Or the “Canadian values of openness, social cohesion, and equality.” Which is to say it is about what one might think about the idea of someone swearing the oath while wearing the niqab. Never mind the values of respecting religious freedom and not unnecessarily dictating how someone should dress. (Also seemingly disregarded is the possibility that a woman might choose to wear the niqab of her own free will.)

In his closing statement on Thursday night, Stephen Harper put new citizens taking the oath with an uncovered face alongside lower taxes, good jobs, a bright future for our children and a decent retirement for our seniors. “These are the values of Quebecers,” he said, “they are Canadian values.” He presented his side as the one to “protect our economy, protect our security and protect our values.”

Protect our values? Setting aside that we should not regard anyone’s choice of dress as an inherent threat, it would seem a rather sad statement on the state of this country to suggest that our values could be threatened by a niqab at a citizenship ceremony, that our values are so fragile. Surely we are stronger than that. At least unless the Supreme Court upholds a ban on the niqab during the citizenship oath, our daughters will remain free of arbitrary rule over their attire.