Human rights issues behind the niqab.

• Author: McKay-PanosOn, Linda

The issue of whether the government can require a woman to remove her niqab before swearing her oath of citizenship in Canada has been the subject of a lot of media attention in the last while. While this issue directly affects a small number of people (about 100 per year), it brings to light a larger issue: What is the correct legal standard by which to determine when an individual's freedom of religion must give way to a government interest? In this case, former Prime Minister Harper expressed the government interest in the House of Commons on March 10, 2015 as: "We do not allow people to cover their faces during citizenship ceremonies. Why would Canadians, contrary to our own values, embrace a practice at that time that is not transparent, that is not open and frankly is rooted in a culture that is anti-women?"

The legal decisions to date address administrative law or policy-making authority and do not address the underlying Charter of Rights and Freedoms issues (see: Canada ((Citizenship and Immigration) v Ishaq, 2015 FCA 194, affirming (Citizenship and Immigration) Ishaq v Canada ration), 2015 FC 156) ("Ishaq"). In the Ishaq case, the Federal Court held that the policy requiring the removal of the niqab in citizenship ceremonies was inconsistent with the duty given to citizenship judges in the legislation to allow the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath of citizenship. Thus, the policy was invalid. While Ms. Ishaq raised Charter issues, the Federal Court did not need to address these to determine the matter. The federal government filed notice of application for leave to appeal this case to the Supreme Court of Canada on September 21, 2015.

What could be the Charter issues and arguments in this situation? The likely arguments would be that the policy (or law, if the government amends the Oath of Citizenship Act) violates Charter sections 2(a), the guarantee of freedom of religion, and/or 15(1). Charter section 2(a), the guarantee of equality without discrimination based on religion and sex (among other grounds).

To prove a violation of freedom of religion under section 2(a), the individual must first demonstrate that he or she sincerely believes that a practice or belief has a nexus in religion, and either voluntarily or mandatorily expresses that faith. An individual need not show that his or her belief is valid or prove to the court that his or her practice is part of a...