The boundaries of Canada’s multicultural society have been tested in two recent cases involving religious attire in public forums.
In February 2015, a federal court judge struck down portions of a federal policy that prevented a Muslim woman from taking an oath for Canadian citizenship while wearing a niqab.
Zunera Ishaq is a Pakistani national who became a permanent resident of Canada in 2008 and had her application for citizenship approved in December 2013.
According to subsection 3(1) of the Canada’s Citizenship Act, subject to rare exceptions, an individual is not recognized as a citizen of Canada until he or she takes an oath of citizenship at a public ceremony.
Prior to her ceremony, Ms. Ishaq contested a policy of Citizenship and Immigration Canada (CIC), which states: “[c]andidates wearing face coverings are required to remove their face coverings for the oath taking portion of the ceremony”.
Before sitting her citizenship examination, Ms. Ishaq had unveiled herself in private to a female citizenship official to confirm her identity. To accommodate Ms. Ishaq at the ceremony, the Minister of the CIC offered to seat her in either the front or back row and next to a woman, so other participants could not see her face if she removed her veil.
Ms. Ishaq refused this arrangement on the basis that the citizenship judge or other officers could be male, and because there could be photographers at the event. She alleged that the policy infringed her right to freedom of religion and conscience protected under section 2(a) of the Canadian Charter of Rights and Freedoms (Charter).
The application judge determined that the impugned CIC policy was inconsistent with subsection 17(1)(b) of the Citizenship Regulations, which states that citizenship judges must “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof”.
Based on the hierarchy of the impugned policy in relation to the Regulations, the judge held the policy to be unlawful “to the extent [it] interferes with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath”. He therefore did not have to address any potential Charter issues.
Canadian Prime Minister Stephen Harper has stated the federal government will appeal the decision.
More recently, a judge from the Canadian province of Quebec informed a litigant that she would not hear her case unless she removed her hijab. Rania El-Alloul had appeared in provincial court to get her car back after it had been impounded by the province’s automobile insurance board. Judge Eliana Marengo informed Ms. El-Alloul that the courtroom is a “secular place” and that the same rules for attire ought to apply to everyone. Ms. El-Alloul refused to remove her hijab.
Following the ruling, a complaint has been filed by another Quebec resident against Judge Marengo to the Conseil de la Magistrate du Quebec, which supervises the conduct of provincially appointed judges.
Both of these cases come in the wake of the Supreme Court of Canada’s decision from December 2012, where the Court held that a witness who wears a niqab for sincere religious purposes may be forced to remove it in a criminal case.
Specifically, the Court stated a witness must remove her niqab if: (a) it is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.
Proponents of the decision argued it struck the correct balance between an accused’s right to a fair trial with a recognition of Canada’s multicultural society. Critics, meanwhile, believed the majority of the Court placed too much emphasis on the role of demeanor in cross-examination without an adequate evidentiary foundation.