Skip to main content

Stop me if you've heard this one before, but this week the Federal Court of Appeal ruled against the government – no wait! Guys, guys, don't go, this is a new one.

I know the Harper government has been defeated in court so many times that legal experts predict upcoming rulings against them will just read "Seriously?" and "You know it's not 'Lose 10 at taxpayers' expense, win one free, right'?" and "Still no," but cast your minds back to the case brought forward by Zunera Ishaq, a 29-year-old woman who came to Ontario from Pakistan in 2008 and successfully challenged the government's 2011 ban on the wearing of face coverings at citizenship ceremonies.

On Tuesday the courts dismissed the government's appeal of Ms. Ishaq's case and on Wednesday the Tories pushed back, promising to take this to the Supreme Court because…. well… their publicly stated reasoning behind this is both mercurial and notable.

Story continues below advertisement

The Conservatives have of late mostly dropped their security rationale for the ban, possibly because (as the majority of Canadian five-year-olds could point out) there's absolutely no security risk in a woman wearing a niqab as she's sworn in.

An oath swearer's identity is already firmly established before the ceremony begins, and this isn't one of those things where you're given a magic sword at the end, anyway. There's no advantage to anyone impersonating anyone else and (take note, ministers of the Crown) a woman who unveils privately just prior to the swearing-in is still there when she covers her face – because the ceremony is public, and that's how she rolls.

That this seems to confuse as many Conservatives as it apparently does concerns me. I'm not sure Canada should be governed by a party that has yet to achieve object permanence. (Although – better utilized – this might make for some raucous games of Question Period peekaboo; it could hardly be less productive than the status quo.)

Security concerns being as demonstrably specious as they are, it seems the other, and far more troubling, rationale for the ban is being played up.

This week, in response to the court's dismissal of the government's case, Jason Kenney, our Minister of Defence, said: "I think it's entirely reasonable to ask, for those 30 seconds, that someone proudly demonstrate their loyalty to Canada." And therein lies the contradiction.

The point Mr Kenney is making here – and a chorus of other Conservatives back him up on this – is that, if you are truly loyal to Canada, you will agree to a brief, symbolic suspension of one of the very rights Canadians most value at the very moment you symbolically become Canadian.

That you don't happen to believe that Ms. Ishaq's Muslim faith requires her to wear the niqab isn't relevant. And it doesn't matter whether you came to this understanding of Islamic theology through years of rigorous study or through something you read on a comment thread once.

Story continues below advertisement

As Chief Justice Beverley McLachlin wrote in Syndicat Northcrest v. Amselem, "The State is in no position to be, nor should it become, the arbiter of religious dogma."

Put another way: "You can decide for yourself what hats the angels dancing on the heads of pins ought to be wearing, we've both got your back and have bigger fish to fry."

What matters in law is how Ms. Ishaq interprets and practises her own faith, and what should matter to Canadians is how vigilantly we protect her – and thus our – right to do so.

Besides, this particular case was not in fact about religious freedom so much as it was about Jason Kenney taking liberties. The courts have so far ruled (twice, and with a veritable eye-roll,) that, as minister of immigration he had no more power to insist women show their faces at citizenship ceremonies than the minister of agriculture and agri-food has the power to demand that every woman buying maple syrup flash her tits.

Prime Minister Stephen Harper has said: "It is offensive that someone would hide their identity at the very moment where they are committing to join the Canadian family," and he's more than entitled to believe that and to never wear a veil.

What he and any of his overreaching ministers, are not entitled to do, as the courts have ruled here, is demand an act of supplication from a tiny fraction of a religious minority.

Story continues below advertisement

The Charter is there to protect the rights of minorities from the will of the majority and, incidentally, from the will of political parties who have a majority they're a touch worried about losing at the moment.

Would we accept a bit of compliance baptism at our swearing-ins, a bit of "Look, it's just a splash of water on your forehead and something from The Book of Common Prayer, don't make a big deal about this, you are, after all, getting to become Canadian"?

I hope not. That would also be against our laws and values and, arguably, the person showing the greatest understating of those laws and values here – and, in undertaking this ordeal, the most loyalty to Canada – is Ms. Ishaq who perhaps doesn't want to see a bizarre precedent set.

Should the niqab ban be allowed, what in this country would be next?

Perhaps every Canada Day a different Charter right could be suspended. Picture it: July 1, 2020, and no one is secure from unreasonable search and seizure for those 24 hours. "Why?" some of the children ask, as their Popsicles are grabbed from their hands, "Because today marks an occasion upon which we celebrate who we are and the temporary, purely symbolic abandonment of our rights is apparently how our government thinks we should do that," says a CSIS agent, enjoying his new Popsicle. I can see it now: miles and miles of Jell-O salad, riffled wallets and emptied handbags laid out on picnic tables, burgers on the barbecue, and then some dad, dishevelled from the exhaustive pat-down conducted by the cops he had just shown around his house, lights off the fireworks.

There are cheers, and sparklers – the ones that didn't get seized. Most agree this year was better then last year, when no one had the right not to be subjected to cruel and unusual punishment.

Story continues below advertisement

Then the kids "ooh" and "aah" at the now-traditional dazzling finale as the Little Charter of Rights and Freedoms goes up and sparks become flames.

In 2021, the right to communicate with and be served by the federal and New Brunswick governments in either official language will be suspended and, it being a holiday anyway, there will be much relief.

It will be almost like the old days, when Canadians just celebrated the delightful fact that everyone celebrated in a manner they saw fit.

Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Discussion loading ...

Cannabis pro newsletter