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Stephen Harper’s veiled threat

A sweeping Supreme Court declaration on the niqab suggests the federal government may be in the wrong


 
Andrew Vaughan/CP

Andrew Vaughan/CP

Anyone who has followed the running skirmishes between Prime Minister Stephen Harper and the courts might reasonably assume that the latest niqab controversy follows a familiar storyline. The Conservatives pass a law in a sensitive area, the courts overturn it on Charter of Rights and Freedoms grounds, and the old tension between elected politicians and appointed judges flares up again. But that’s not what happened this time. In fact, the Tories didn’t pass any new law to ban face veils such as the niqab during the swearing of the citizenship oath; they just wrote a guideline to that effect for citizenship judges to follow. When a niqab-wearing Muslim immigrant from Pakistan objected to uncovering her face, a Federal Court judge found—without even having to invoke the Charter’s protection of religious freedom—that the new guideline wasn’t allowed under Ottawa’s existing regulations.

If that sounds like quibbling over administrative rules, the political fallout indicates a lot more is going on here. In announcing his decision to appeal that Federal Court ruling, Harper framed the issue in terms of defending Canadian identity, declaring last month that face veiling is “not the way we do things here.” In the House, he later denounced the niqab, which is worn in Canada by a small minority of Muslim women, as being “rooted in a culture that is anti-women.” Liberal Leader Justin Trudeau accused Harper of trying to “foster prejudice directly toward the Muslim faith.” Despite all the heated political rhetoric, though, some legal experts see no reason to expect this particular case, when the appeal is eventually heard, to amount to a serious test of when the government is justified in limiting the ways people express their faiths.

The judge who ruled against the guideline banning face-covering veils during the reciting of the citizenship oath found that it conflicted with an older regulation, one that requires citizenship judges to allow “the greatest possible freedom in the religious solemnization” of the oath. University of Toronto law professor Denise Réaume says the vehement reactions of Harper and Defence Minister Jason Kenney, who brought in the anti-veiling guideline when he was citizenship minister in 2011, belie the fundamental weakness of their legal position. “There couldn’t be a clearer case of government ministers just whipping up the population when they haven’t got a legal leg to stand on,” Réaume says. If they really want to invite a decisive Charter challenge, she adds, the Conservatives should explicitly rewrite the citizenship-ceremony regulations to assert the symbolic importance of unveiled oath-taking by new Canadians.

Read More: The weak and uninspiring case against the niqab

Based on comments from Harper and, especially, from Kenney, the government seems to think it can justify not allowing the niqab, largely on grounds that Muslim women are not, in fact, required for religious reasons to cover their faces in public. In an interview with Maclean’s, Kenney stressed his own understanding that this isn’t a genuine issue of religious freedom. “I note that a huge number of Muslims have reminded me that the face covering is not a religious obligation,” he said. “This is a cultural tradition of Arab tribes from the pre-medieval period that has been imposed on some women.” But the Supreme Court of Canada, in a landmark 2012 decision, said that sort of historical analysis is irrelevant, if an individual sincerely believes that the niqab is a required form of religious observance.

That decision was handed down in a case involving a woman who wanted to wear a niqab while testifying against two men she claimed had sexually assaulted her. The court had to weigh her right to religious freedom against their right to a fair trial. Writing for the majority in a split decision, Chief Justice Beverley McLachlin said trial judges had to decide on a case-by-case basis, assessing in each instance if “the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.” McLachlin was clear, though, that a wide ban on the niqab, on grounds that religious expression has no place in a “neutral space” like a courtroom, would be going too far. “It is inconsistent with Canadian jurisprudence, courtroom practice, and our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible,” she wrote.

Further Reading: MP Larry Miller apologizes for “stay the hell where you came from” comment on the niqab  

That sweeping declaration from the top court on how governments must allow religious expression suggests Harper and Kenney have a tough case to make. Still, not all experts see them as doomed to lose their appeal case over banning veils during the citizenship oath. University of Saskatchewan law professor Dwight Newman says the Federal Court judge who made the ruling might have read too much into the regulation requiring religious freedom during the ceremony. “I think the natural reading of that is people might swear the oath on different religious books,” Newman says. “But I’m not sure that regulation, in the way the judge suggests, has anything to say about the niqab.” Maybe not. Politicians, professors and pundits, though, seem to be talking these days about little else.


 

Stephen Harper’s veiled threat

  1. Just more Ottawa stupidity on all sides. Have Trudeau spewing hate towards Harper while pandering to minorities, and the court, judgment isn’t even in Harpers control, its a Quebec court, Quebec govmint appointed judge.

    Just more LOONACY from a every more dysfunctional Ozawa:

    Harper has no heart,
    Trudeau has no courage,
    Mulcair has no brain,
    May is a witch,

    Senators munchins consume and do nothing else.

    Its the land of Ozawa, so far out of touch from the rest of this country, we need a option on the ballot to get more control for the common people. As all this Ozawa nonsense is well, costing us too much. The reason Ozawa can’t fix the economic problems, is its too dysfunctional, too tax greedy, too wasteful, its a brokerage house for other peoples money and debt to the unborn.

    No leadership, just pandering fools.

    • Regarding your list of party leader attributes:

      Trudeau stepped into the boxing ring with Brazeau. I think that required courage.
      Mulcair has been very effective in question period in the HoC, which requires some brains.
      May has been voted best parliamentarian by her peers in the HoC, probably without casting a spell.

      • Trudeau’s sparing match was not a display of courage but rather childish bravado. Mulcair is an attack dog who is leading his party to be in third place. And May’s environmental agenda would move us back to a horse and buggy era when we all died 30 years earlier then we do today. I only wish Harper was more aggressive at making the processes that run the country faster, better and cheaper but he is leading this at least in the right direction.

        • So basically you want Harper to come out of the closet.

        • Harper is leading us in the right direction? NOT. He is the worst thing that has ever happened to Canada. We need to fix our electoral system so that the Prime Minister is chosen by the MAJORITY of Canadians, not a minority of religious zealots.

  2. Jerome;
    Yes Trudeau stepped into the boxing ring. As a former golden gloves champion I know that it takes some guts to do so…I can tell from your comments that you wouldn’t understand this.
    Saying that; I’m not a supporter of Trudeau and would not vote for him for a lot of reasons. But give credit where credit is due–he did weather the Brazeau storm and stopped him in two. That does take guts

  3. Is it too much to ask to show your face as you become a Canadian citizen.
    Wear your niqab where ever you want but give Canadians a break on showing your face in official ceremonies or on official documents; what a crock of limp handed crap by many Canadians who would defend this nonsense.
    The women came here from Pakistan for god’s sake!!

  4. MacLeans is simply showing it is a lefty rag – spinning as much as it can to keep that toronto readership up

    Most (88%) Canadians Support Requirement for People to Show Face during Canadian Citizenship Ceremonies –

    http : // www . ipsos-na . com / news-polls / pressrelease . aspx?id = 6796

    Global News: Most Canadians say faces shouldn’t be covered at citizenship ceremonies, poll –
    http : // www . ipsos-na . com / news-polls / pressrelease . aspx?id = 6623

    Let me echo the MP who is being vilified for his comments – “If you want to come to Canada – welcome!”

    If you want to make our home like yours – you know – the place you left?

    “Then stay the hell out of my country”

    We do not need you turning it into an islamic ghetto – you know – like those places you left?

    Look at what has happened in Norway, Sweden, Denmark, Holland, UK, Italy, Spain and more.

    Come here and become part of OUR culture! Or stay away.

    So far all of those nice new immigrants and refugees are costing us billions and not integrating – making us the new welfare capital of the western world.

    Call me racist – after all in Canada you cannot be racist unless you are white – all other creeds and cultures claim victim status.

    I am in fact a realist!

  5. Just about everyone in the country supports Harper on this, and Junior is relegated to defending the indefensible.

  6. Face covering should not be allowed in any public place in Canada, only in homes or places of worship. Should you be able to mask yourself in a bank, a courtroom, while driving? No discrimination against gender, faith or race. You may not disguise your identity in public period.

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