Tag Archives: niqab

The appeals court rules on the niqab

This one sentence sums the entire debate up.

Trudel needed 24 paragraphs to dismiss that request. Nearer the end was a sentence that could be used to summarize the whole affair. “I find,” she wrote, “that the appellant has not demonstrated that refusing his application for stay would result in irreparable harm to the public interest.”

Here is some of the background of the decision from Maclean’s Magazine

That finding is based, in part, on the government’s own convoluted defence of its actions. What might otherwise be considered a ban on the wearing of the niqab during the citizenship oath has been presented to the court as an expression of “a desire in the strongest possible language.” So the ban is not quite a ban, insofar as citizenship judges have the discretion to allow someone to wear a niqab during the oath; despite the policy’s use of the term “must,” the government has been arguing that there is some room for a judge to decide that a woman need not remove her niqab.

The trouble here is that the minister, Jason Kenney, in this situation, does not have the power to unilaterally fetter the discretion of citizenship judges. Thus, if the ban were said to be mandatory, the government’s case would be moot.

The Federal Court’s Justice Keith Boswell found that the policy was mandatory in nature—and also in contradiction with legislation that allows for the greatest possible religious freedom in swearing the oath—and the Federal Court of Appeal found no reason to differ with Justice Boswell on that point. But the argument that the policy is optional has now been used by Trudel to dismiss the government’s request for a stay.

“Presuming that the appellant is right that the policy at issue is not mandatory and citizenship judges can apply it or not . . . how can one raise a claim of irreparable harm?” Trudel writes—irreparable harm being the standard for a stay. “It is simply inconsistent to claim, on the one hand, that a policy has no binding effect on decision-makers, but that irreparable harm would result if that policy was to be declared unlawful on the other.”

Furthermore, Trudel notes, “Citizenship and Immigration Canada had valid guidelines and procedures to ensure that citizenship candidates take the oath prior to the adoption of the policy. These guidelines and procedures are undisturbed by the finding that the policy is unlawful. There is no legislative or regulatory void.”

That is, procedures already exist to ensure an oath is duly sworn.