Feds to Take Controversy Over Face Coverings to Supreme Court

Issue likely to end up on the campaign agenda
September 16, 2015 Updated: September 16, 2015

OTTAWA—The federal government will challenge a Federal Court of Appeal decision that quashed its attempts to ban face coverings at citizenship ceremonies.

Immigration Minister Chris Alexander issued a terse, one-line statement Wednesday, Sept. 16, to outline the government’s next step. “The government of Canada will seek leave to appeal to the Supreme Court of Canada in the Ishaq case,” he said.

Zunera Ishaq, a 29-year-old, devout Muslim woman who came to Ontario from Pakistan in 2008, refused to take part in a citizenship ceremony because she would have to show her face.

On Tuesday, the appeal court dismissed the government’s appeal of an earlier Federal Court ruling case that declared the ban on face coverings at such ceremonies was unlawful.

The three-judge appeal panel ruled from the bench, saying they wanted to proceed quickly so that Ishaq could obtain citizenship in time to vote in the Oct. 19 federal election.

One of Ishaq’s lawyers, Marlys Edwardh, said the Immigration Department would be contacted this week so she could attend a citizenship ceremony—accompanied by her lawyers “just in case.”

It was not immediately clear Wednesday whether the government’s stated intention to try and appeal the decision could stop Ishaq from taking the oath before the election. The government has 60 days to file an application to the top court asking it to hear the case.

The ban on face coverings sparked a bitter debate in the House of Commons when it was first announced. Tuesday’s ruling—and the decision to fight it—are sure to put the issue firmly on the campaign agenda.

When a government tables legislation, it’s more than just desire.
— Denis Lebel, Prime Minister Stephen Harper's Quebec lieutenant

The court case stems from the Conservative government’s attempt to implement a ban on face coverings by ministerial order in 2011. According to documents filed in court, Immigration Department officials were leery.

“My interpretation is that the minister would like this done, regardless of the legislative base and that he will use his prerogative to make policy change,” one wrote to a group of colleagues in 2011.

In court Tuesday, Justice Department lawyer Peter Southey surprised the judge and defence lawyers when he said the government never meant to make it mandatory for women to remove their face coverings for citizenship ceremonies.

The controversial edict was a regulation that had no actual force in law, Southey told the hearing.
“It indicates a desire in the strongest possible language,” Southey said—an argument that appeared to come as a surprise to Justice Johanne Trudel.

“I cannot see how this is not mandatory,” Trudel said during the hearing.

Speaking in Quebec Wednesday, Denis Lebel, Prime Minister Stephen Harper’s Quebec lieutenant, suggested the government now plans to make it a mandatory by law. Lebel said that if re-elected, the Conservatives will re-introduce and adopt legislation on the oath of citizenship within 100 days.

Citizenship isn’t just a privilege and brings with it the responsibility to clearly identify oneself when taking the oath, he said.

“When a government tables legislation, it’s more than just desire,” Lebel said. “We have the political belief that this is the way it has to be.”