CAMWL comments on FCA decision denying interventions in niqab case

CAMWL is disappointed that the Federal Court of Appeal has decided it will not hear from any of the public interest organizations who had sought leave to intervene in Ishaq, a case regarding the federal ban that prohibits citizenship candidates from wearing niqabs and other face coverings while taking citizenship oaths.

In our recent Winnipeg Free Press editorial (full text below), CAMWL explains why this decision poses serious serious concerns for both and Ishaq and for public interest organizations more broadly.

See here for our previous commentary on this case.

Niqab case loses voices of diversity
June 30, 2015

On June 22, the Federal Court of Appeal ruled in a case that could dramatically reshape the meaning of democracy in Canada that it would not hear from any of the public interest organizations hoping intervene in the case.

The case by now is well-known: Zunera Ishaq is a Muslim woman going through the Canadian citizenship process. The Federal Court in February found that it was unlawful for Citizenship and Immigration Canada to have instituted a policy forbidding citizenship candidates from wearing niqabs and other face-coverings during their oath-taking.

Ishaq has passed all steps of the Canadian citizenship process, including the citizenship test; all she wants now is to swear allegiance, wearing her everyday clothes. Due to the government’s decision to appeal the decision, her citizenship remains outstanding.

Last week’s decision to deny leave to all proposed interveners is remarkable: its categorical refusal to hear from any of them poses serious concerns for Ishaq — and potentially for all organizations that turn to the courts to challenge inequality.

In dismissing in one fell swoop the diverse and specialized expertise of all six groups who sought intervention status — including, the Barbra Schlifer Commemorative Clinic, Canadian Civil Liberties Association, National Council of Canadian Muslims, and the Ontario Human Rights Commission — the judge held that none would advance a different perspective of assistance to the court. When organizations seek leave to intervene, it is because their perspectives may be new to the court, and would not otherwise be raised by the parties.

The ripple effects of this extremely narrow interpretation of intervention law could be wide-reaching. Among other things, the judge prohibited interveners from presenting social science research to support their arguments. This means important questions may now remain unanswered in Ishaq.

For instance, how can we address the policy’s regression in the history of women’s suffrage in Canada? It wasn’t until 1960, when Ottawa finally let aboriginal people vote, that all Canadian women could vote. Denying Ishaq the right to citizenship necessarily denies her the right to vote, which is essential to participating in an electoral democracy. LEAF, another group denied intervention, had submitted that preventing women from access to voting because of their clothing violates equality rights under the Canadian Charter. For the Canadian Association of Muslim Women in Law (CAMWL), whose work is grounded in the lived experiences of Muslim women in Canada, the fact that racialized women have long been barred from the vote hits close to home. Interveners could have illuminated this and the myriad socio-economic and political elements that characterize a case as charged as Ishaq for the court.

The decision also suggests the court does not understand how cash-strapped community groups are. In an era of funding cuts, the judge asserted interveners should take on a greater role during fact-finding at the lower courts. But public interest groups do not have the resources to pursue every worthy claim, particularly at the trial level.

This decision potentially shuts the door on interventions at both trial and appellate levels, with the result that the voices of those most directly affected by government policy would be effectively excluded from the courtroom.

In contrast, the government is spending tax dollars pursuing this appeal. Its chief argument is that the policy is not binding law, but it introduced earlier this month a bill that explicitly bans face coverings at citizenship ceremonies. The redundancy is irresponsible, yet the court’s decision would imply that it is community groups who have money to burn on law reform.

Despite the disappointing decision, CAMWL hopes the Federal Court of Appeal will nonetheless undertake a contextual and nuanced analysis of women’s access to democracy in Ishaq.

The state has no place in women’s wardrobes.

Fathima Cader, a lawyer and adjunct professor, serves on the steering committee of the Canadian Association of Muslim Women in Law.