Everything You Need to Know About Canada’s Niqab Ban (and its Appeal)

For Immediate Release (Toronto, ON, Feb 24, 2015): The Canadian Association of Muslim Women in Law (CAMWL) is dismayed that the Conservative government will be appealing the Federal Court’s decision to strike down (effective immediately) the federal ban that prohibited citizenship candidates from wearing face coverings while taking their citizenship oaths. The Conservatives have stated that this ban is specifically meant to target Muslim women who wear niqabs. The ban and this appeal demonstrate a crass Conservative politic of capitalizing on anti-Muslim xenophobia to score populist support.

The ban was introduced in 2011 by Jason Kenney, then-Minister of Citizenship and Immigration, now Minister of National Defence and Minister for Multiculturalism. Mr. Kenney, his successor, Christopher Alexander, and Prime Minister Stephen Harper, have sought to justify the ban by that claiming that niqabs – and, by association, the women who wear them – are “offensive.”

The ban was challenged in court in 2014 by Zunera Ishaq. Ms. Ishaq, a former high school teacher, had passed all the requirements of the citizenship process, including the citizenship test; however, she was prohibited from taking her citizenship oath, because she wears a niqab. The oath would have been the final step in Ms. Ishaq’s becoming a Canadian citizen.

Photo of Zunera Ishaq by J.P. Moczulski for the National Post.
Photo of Zunera Ishaq by J.P. Moczulski for the National Post.

The case was heard by Federal Court Justice Keith M. Boswell. On Feb 6, 2015, he held the ban was unlawful, because it violated the government’s own regulations, which require that citizenship judges administer the oath “with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof.” Justice Boswell held that the ban made this impossible, as it required certain candidates to “violate or renounce a basic tenet of their religion.” Here, he relied on internal Citizenship and Immigration (CIC) emails, in which one staffer, noting hand-written instructions from Mr. Kenney, stated: “the Minister would like this [ban] done, regardless of whether there is a legislative base and … he [Kenney] will use his prerogative to make policy change.”

Under the Citizenship Act, the only proof required of oath-taking is the candidate’s signature on their Oath of Citizenship form. Justice Boswell observed that “any requirement that a candidate for citizenship actually be seen taking the oath would make it impossible not just for a niqab-wearing woman to obtain citizenship, but also for a mute person or a silent monk.”

Mr. Alexander has stated that the Conservatives will be appealing the “court decision allowing people to wear the hijab while taking the oath.” This would suggest the Conservatives seek to expand the reach of the ban from the small handful of Muslim women in Canada who wear facial veils (niqabs) to the vastly greater number of Muslim women who wear headscarves (hijabs).

In the alternative, it may be that Mr. Alexander does not know the difference between hijabs and niqabs, even as he seeks to regulate them.

The hijab reference also recalls the Conservatives’ 2011 “oath reaffirmation” ceremony, staged for the now-defunct Sun TV, where one CIC bureaucrat posed in a hijab. The Conservatives failed to disclose to the public that none of the bureaucrats were actually new Canadians.

Photo of staged Conservative citizenship reaffirmation ceremony. Frame grab by Sun Media News.
Photo of staged 2011 Conservative citizenship reaffirmation ceremony. Frame grab by Sun Media News.

The Conservative government claims that its ban “protects women from violence.” Yet the government has put forward no evidence that women who wear niqabs, by virtue of wearing them, need protection from violence. The government has also failed to put forth evidence that banning niqab-wearing women from taking citizenship oaths would achieve their stated outcome.

Rather, the Federal Court noted: “If [Ms. Ishaq] is opposed to baring her face, then the [government] says that she should just accept the consequences of not becoming a citizen.” When structural and systemic violence against women is a real and pressing issue in Canada, the consequences of being denied citizenship – especially for women living in poverty and/or with precarious immigration status – include diminished access to essential social services and the heightened threat of deportation.

The Conservatives are using Ms. Ishaq’s immigration status to suggest they care about violence against women. Yet they have rejected calls for action into the crisis of thousands of missing and murdered Indigenous women in Canada, declaring that violence “not a priority.” The selectivity of these speaking points about women’s rights demonstrates the Conservatives’ opportunistic approach to gendered violence. Indeed, this double-speak is itself violent.

The government’s decision to appeal Justice Boswell’s ruling must also be situated against the broader affronts it has made to citizenship: Canadian citizenship is becoming harder to get and easier to lose. The Conservatives amended the Citizenship Act in 2014 to grant the Minister of Citizenship and Immigration unprecedented discretionary powers to revoke and deny citizenship, while making it harder for Canadians to appeal those decisions. The amendments specifically target dual nationals, naturalized Canadians, and the descendants of immigrants, thereby creating a two-tiered and arguably racialized system of citizenship.

CAMWL also notes that this appeal is occurring against the backdrop of Bill C-51, the so-called “anti-terror” bill, which would, among other things, chill free speech and dissolve privacy rights in the name of eradicating “extremist” views. Critics have already noted this bill’s disproportionate and arguably targeted impact on Indigenous communities, environmental activists, dissidents, and Muslims. Bill C-51’s binaristic approach to “mainstream” versus “extremist” values reflects a fixation with, among other things, policing Muslims’ diverse and often divergent religious, cultural, and political practices. The ban and this appeal demonstrate the government’s particular preoccupation with policing how Muslim women dress.

The Islamophobic hysteria that has helped sustain measures such as the “anti-terror” bill belies the arguments about discrimination the government made in Ms. Ishaq’s case. There, the government conceded that the niqab ban affects Muslim women in particular, but contended that that distinction was not discriminatory, claiming “there is no proof of any pre-existing disadvantage, stereotype or prejudice that is perpetuated by requiring [Ms. Ishaq] to show her face while she takes the citizenship oath.” Under this patchwork regime of repression and regression, citizenship is becoming an increasingly limited and an increasingly precarious privilege, one extended increasingly rarely to racialized people, including Muslim women.

CAMWL calls for a meaningful commitment to justice and equality. This ban provokes, exploits, and sustains hate and fear. Though it is specifically Muslim women who lie at the cross-hairs of this particular federal policy, CAMWL stands with diverse communities from across Canada in calling for an end to the government’s practice of fostering a political culture of precarity and exclusion through the demonization of marginalized and minority groups. This is not the first time that the federal government has sought to exclude racialized people from the nation, nor are Muslims the first group in Canada to be targeted by such exclusionary practices. These policies and this politic must not stand – not for Muslim women who wear niqab, and not for any other group targeted or collaterally affected by this government’s divisive tactics.

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Canadian Association of Muslim Women in Law

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