Niqab controversy: Judge struck down ban without referring to charter

When Federal Court Judge Keith Boswell ruled last month that a woman could wearaniqab whiletaking her oath of Canadian citizenship, supporters may have thought the decision was anothervictoryfor charter rights.

During the controversy over the niqab ban, the charter was certainly cited, in particular regarding religious freedom and freedom of expression rights.

But in his ruling,Boswell avoided any charter issues, focusingnot on whether the woman's rights had been violated, but rather the legality of the ban.

The case itself involvesZunera Ishaq, a Pakistani womanand devout Sunni Muslim who is seeking Canadian citizenship.Based on her religious beliefs, Ishaq wearsa niqab, or veil, to cover most of her face when out in public.

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In 2011, then immigration minister Jason Kenney issued a new policy manualstating that candidates for citizenship must remove any kind of face covering when taking the publiccitizenship oath.

'Must be taken freely and openly'

It's a "public declaration that you are joining the Canadian family and it must be taken freely and openly," Kenneytold CBC News at the time.

While applying for citizenship in2013, Ishaq had agreed tounveil herself to an official before taking the citizenship test. But she objected to removing her niqab at the public swearing-in ceremony.

Ishaq, a permanent resident, later sued the government, arguing, in part, that the ban against her wearing the niqab during the ceremonywas an infringement of her charter rights.

Boswell, however, in rendering his decision, thought it "imprudent to decide the charter issues that arose in this case, instead saying the "evidentiary record was adequate to decide the matter."

"A court will look at whether a law violates the Charter of Rights and Freedomsas a kind of last resort," said AudreyMacklin, a professor and chair of human rights law at the University of Toronto. "Courts dont tend to go to the charter first, they tend to go to the charter last."

So Boswell focused on whetherthe government had violated its own law the Citizenship Act by imposing such a ban.

Under the section "Ceremonial Procedures of Citizenship Judges," the actstates that acitizenship judge shall administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization" of taking the oath.

In his ruling, Boswell said thatKenney'spolicy manual that banned the wearing of the niqabwhile taking the oath contradicted the act. A judge couldn't comply with both the policy manual, which said one thing, and the act, which said another, Boswell suggested.

"How can a citizenship judge afford the greatestpossible freedom in respect of the religious solemnization or solemn affirmation in taking theoath if the policy requires candidates to violate or renounce a basic tenet of their religion?" Boswell asked.

Boswell offered two hypothetical examples:a monk who had taken a vow of silence and a person who is mute. Would a judge be affording a monkthe "greatest possible freedom" by forcing him to betray his vow? And what if a person is physically incapable of saying the oath and cannot be heard taking it?

As the Citizenship Actis a law passed by Parliament and the policy manual is a directive from a cabinet minister, the act naturally trumps the policy manual, Boswell reasoned.

Minister 'doesn't have that power'

"The minister is not authorizedto make law. He doesnt have that power," said Macklin. "And if he purports to make law or make a rule or command a citizenshipjudge to do something that takes away from thecitizenshipjudge's discretion,and even more, commands the judge to do something that is directly contradictory [to what] the law says, then the ministerhimself is acting unlawfully."

Government lawyers had argued there was no contradiction between the act and minister'spolicy manual. They saidthe manual did notattempt to trump the act because the policy of banning veilswas not mandatoryinstead more of a suggestion or guideline thatcould be disregarded by citizenship judges.

However Boswell, in his ruling, said the policy manual makes it perfectly clear that the veil ban is not a suggestion or optional, and that itclearly states that candidates "are required" to remove their face coverings for the oath-taking portion ofthe ceremony. If they do not, the manual says that the certificate "is NOT to be presented."

Taking all that into consideration, Boswell ruled that the ban on wearing a niqab was unlawful.