Niqabs and the Canadian Citizenship Oath

Niqabs and the Canadian Citizenship Oath

by

Howard Adelman

Preamble

I am en route back to Canada so a requirement of Canadian citizenship for new Canadians, namely the oath of allegiance, is an appropriate topic raised in Michiel’s email to me yesterday which I first read last evening. Further since this issue is primarily a thought exercise requiring only reading the documents referred to as well as the federal court ruling, and does not require extensive research, it is a great way to fill my early morning hours.

Michiel Horn sent me Cliff Orwin’s discussion of Harper’s opposition to wearing the niqab when an immigrant takes a citizenship oath to become a Canadian citizen. A niqab, a veil that covers all but the eyes of the face of a Muslim woman, is required by some ultra-orthodox Muslims to be worn when in public in the presence of a non-mahram male, that is, a mature male past puberty who is not a relative of the immediate extended familys. Thus, fathers, grandfathers, great-grandfathers, siblings, children, grandchildren, uncles, cousins, nephews, father-in-law, son-in-law, and further refinements are mahraim. Essentially, if a Muslim married a mahram, this would constitute incest.

I have forwarded Michiel Horn’s e-mail separately since I was not able to technically include it within this blog. The references were to the following:

http://www.theglobeandmail.com/globe-debate/stephen-harpers-veiled-attack-on-religious-freedom/article23044095/

http://tvo.org/video/211154/clifford-orwin-niqab-or-no-niqab

http://www.theglobeandmail.com/globe-debate/no-room-at-the-inn-for-veiled-women-get-real-canada/article1214841/

My response has little to do with Harper’s political motives – which are often questionable. It has more to do with Cliff’s critique that is correct as far as it goes. However, the critique, on the one hand, went too far since the court found in favour of Zunera Ishaq, not on the basis of the constitutional challenge and the respect for religion and requirement of tolerance, but on errors in administrative law in a government making something mandatory and incumbent on judges to implement when the applicable legislation permitted no such action. More importantly for the point I want to make, Cliff’s argument does not go nearly far enough to unpack the underlying issue. Once unpacked, a whole different dimension of the issue emerges. But first let me briefly recapitulate first Harper’s position, Cliff’s response and that of the Federal Court that found in favour of Zunera Ishaq.  

Minister Stephen Harper’s Position

Harper stated in parliament, and did so most vociferously, that it is “offensive” for a new applicant for Canadian citizenship to wear a face covering niqab when taking an oath to become a Canadian citizen. Actually, he said it was offensive because at the time of the oath the individual was “joining the Canadian family” not becoming a Canadian citizen. The two are not the same as Cliff noted. This policy was introduced by Jason Kenney as Minister of Immigration and Citizenship on 11 December 2011. Kenney argued that 80% of Canadians oppose wearing a niqab when taking an oath of citizenship. Harper vowed to appeal the Federal Court decision. (More tomorrow on that vow.)

Clifford Orwin’s Views

Cliff Orwin argued that Harper’s position is totally wrong and made Jason Kenney’s tending to religious suppression even more heinous. It is not an issue of numbers. Cliff does not care that the ruling only applies to one hundred women in Canada – actually, it applies to one hundred women per year, but this is a technicality since the point is the rule affects relatively few of the quarter million individuals who become citizens each year. Nor does it matter that 80% of Canadians follow Harper’s lead and abhor that a religious Muslim woman be allowed to wear a niqab at a public ceremony where the oath of allegiance to Canada is sworn. Nor does Cliff think that Harper’s appeal to transparency and openness is at all relevant. “Liberal democracy isn’t about compulsory baring of ourselves (or our faces) to others.” Nor is calling the Canadian society a “family” relevant, for in taking the oath of citizenship, one is not joining one big family, but simply acquiring membership in a state. For Cliff, it is about the fundamental small “l” liberal belief in “the right of each of us to lead a life of our own, in religious matters as elsewhere,” as long as in doing so we do not harm another. Offending someone is not prohibited by the Charter of Rights and Freedoms.

Freedom of worship is a Canadian value. The Canadian Charter of Rights requires respect for religious freedom. Transparency and openness are appreciated by Canadians, but unburdening ourselves, as one might do in a family, is neither protected nor expected by the Charter. Nor is the issue one of respecting local customs – “when in Rome” – for wearing a niqab is a religious practice, not an expression of local custom. So custom is not the issue. The right to wear the niqab as a form of religious expression is. When Paikin asked Cliff whether it was alright for an immigrant to wear a Nazi storm trooper uniform when taking an oath of citizenship, Cliff insisted the issue was not the same. Wearing a Nazi storm trooper uniform is not ok because it is not a religious expression, but an expression of intolerance. Therefore, it is not a parallel circumstance.

To repeat, the issue for Cliff was not whether the vast majority of Canadians abhorred the practice of women who believe it is appropriate to wear a niqab, particularly at a Canadian citizenship ceremony when taking an oath of citizenship. What the vast majority of Canadians abhor about a piece of apparel when that apparel is worn for religious reasons is of no consequence. There are indeed legitimate reasons why wearing a niqab rubs people the wrong way. A man wearing shorts and sandals leading a woman in a burka in a doctor’s office may be repugnant to someone also sitting in that office, but the woman wearing the burka has as much right to wear the burka as the other woman in the office has the right to be repulsed by the practice. Again, the reaction to wearing a niqab is irrelevant to the right of the woman to wear the niqab, including when taking an oath of citizenship. A niqab-wearing Muslim woman may not be Harper’s type of Canadian, but hopefully all Canadians do not and will not conform to what Harper thinks is a right kind of Canadian but, rather, what the law determines.

Paikin offered another example posed by a commentator to Cliff’s Globe and Mail op-ed. She said that, at a citizenship oath ceremony, she had observed a man taking the oath of citizenship, shaking the judge’s hand and receiving a certificate but when his wife took the oath, he insisted that she could not shake the judge’s hand and the husband took the certificate on her behalf. Cliff insisted this was not ok. The reason was because, in this case, the man was interfering with the wife’s freedoms. Presumably, if she declined to shake hands with the judge and personally requested that her husband receive the certificate on her behalf, that would be ok. It is the interference with the right of the individual to make her own religious beliefs known that was evidently the problem.

Paikin asked whether some aspects of the Muslim religion were essentially intolerant, especially of other religious beliefs. Whether or not that was the case, Cliff replied, was not relevant since the person taking the oath vowed to subscribe to the laws of Canada that dictated respect for the religious beliefs of others. It was presumed that just as her avowal of her religious beliefs was sincere, so it must be presumed that her oath of Canadian citizenship must be presumed to be sincere. I will return to this issue, but as a segue into the next section it has to be noted that while Cliff defended the right of the woman to wear the niqab on charter grounds, these were not the grounds the federal court struck down the 11 December 2011 policy banning women from wearing a niqab at a citizenship oath ceremony.

The Legal Case

The case arose when Ms. Zunera Ishaq, a Pakistani Muslim immigrant, following Hanafi beliefs that require devout Muslim women to wear a niqab in public, applied to have her citizenship ratified by taking an oath of allegiance to Canada. A permanent resident of Canada as of 25 October 2008, her citizenship was approved by a citizenship judge on 30 December 2013 after proper identification was made on 22 November 2013 (at which time she removed her niqab in front of a female immigration officer). Zunera Ishaq was granted citizenship on 2 January 2014. The citizenship ceremony to consummate the awarding of that citizenship was scheduled for 14 January 2014. However, for the citizenship to be consummated, she had to take an oath of allegiance to Canada before a citizenship judge. The citizenship oath that she was still required to take reads as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

At the time she removed her veil for identity purposes, she was also advised that when taking the citizenship oath, she would also be required to remove her veil. She presumed that this also could take place in private in front of a female citizenship judge. However, she learned that Operational Bulletin 359 introduced by CIC on 12 December 2011 required removal of any face covering for the oath taking part of the citizenship public ceremony. As the CIC officials testified in court, prior to 12 December 2011 the judge only needed to be satisfied that people had taken the oath; after 12 December, the judge was required to witness the person taking the oath and not simply hear the oath, meaning that neither monks sworn to silence nor mutes could take the oath. More specifically,

[C]andidates wearing face coverings are required to remove their face coverings for the oath-taking portion of the ceremony.

However, the regulation went on:

“If they do not [take off the face covering], they will not receive their citizenship certificates and will have to attend a different ceremony. If they again do not comply, then their application for citizenship will be ended.”

The presumption was that this alternative ceremony would allow her to take off her niqab in private before a female citizenship judge. However, she was warned that this would not be the case. Further, all compromises proposed meant that she would be required to remove her veil before unrelated adult males. Both the initial and the alternative ceremonies were public. So Zunera Ishaq appealed to the Federal Appeal Court in accordance with the provisions of the Immigration Act. She did not wait to be ordered to remove her face covering but appealed the regulation in anticipation of this outcome.

The government would claim in court that this made the whole appeal moot since no action had been taken that either did or did not abuse her rights. I would argue it was a silly argument – since the issue is that you are affected by a regulation, and not whether you are affected in a very specific way. The government further claimed that the citizenship judge, as an independent official, might have disregarded the policy, but section 1 of the manual specifically says the regulations bind the judges. Both of these government responses to Zunera Ishaq’s claims were rightly ruled as invalid.

The issues were as follows:

  1. a declaration that the Policy infringes paragraph 2(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] [regarding respect for religious beliefs];
  2. a declaration that the Policy infringes section 15(1) of the Charter [prohibits discrimination on the grounds of religion and sex];
  3. a declaration that the Policy is inconsistent with the governing legislation and is therefore beyond the powers of the Respondent [what constitutes proof that she took the oath];
  4. a declaration that the Policy unduly fetters the discretion of citizenship judges [a contention under administrative law];
  5. an order enjoining the Respondent and any officials of the Respondent from refusing citizenship to the Applicant on the basis of the Bulletin; and
  6. her costs.

In this case, there were technical issues as well as constitutional ones at stake concerning dates of notice and to whom notice was to be given, but we can ignore these for they had no effect on the substantive case and were ruled as inapplicable. Further, the above-mentioned CIC regulation was not

promulgated under sections 27(g) and 27(h) of the Act, which permit the Governor in Council to make regulations “(g) prescribing the ceremonial procedures to be followed by citizenship judges” and “(h) respecting the taking of the oath of citizenship.”

The intention of the policy was that it be mandatory. On that ground, and on that ground alone, the court found the position of the government to be inconsistent with the legislation and invalid.

Tomorrow: The Deeper Issue – Potentially Conflicting Oaths

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