Part One: Exposing Canada’s ugly face of intolerance

Oh, Canada. We really can be such suckers for political manipulation.

Of course, I am speaking about the niqab controversy, that emotionally charged “wedge issue” that the Conservatives have succeeded in using to divide Canadians against one another in the hopes of winning back some support from the intolerant masses.

Meaning us. Or at least, people like me, ashamed as I am to admit it.

My initial gut reaction to the idea that anyone should be allowed to cover their face while making their public oath of citizenship was so “Canadian”, in the petty, visceral, and viral sense intended by the Harper government.

It was one of incredulity, irritation, anger, and above all, intolerance.

It was also unreasoned, unreasonable, and wholly ignorant of the facts.

Which is to say, it was wrong and innately imbued with racism, as much as I like to tell myself that bigotry has nothing to do with me.

“My” Canada, after all, rests on the Canadian bedrock values of tolerance, understanding, and an abiding respect for individualism and diversity.

That is, it does to the extent that those values comfortably align with my sense of all that is familiar and essentially conformist in Canadian society. 

The niqab controversy was strangely disquieting.

The more media coverage it received, the more the issue rankled as it also gnawed away at my troubled conscience. Especially after the French-language leaders’ debate.

What did I really know about the case in question? Nothing.

Why was I so put off by the image of someone wearing a veil while taking her public oath of citizenship? My arguments were so much weaker than my inexplicable rancour.

What did I know about the citizenship procedure? Zip.

I had no clue about the oath-taking process as it was formerly practiced, or of how the citizenship judges’ discretionary power was so fundamentally undermined by the Harper government’s policy changes.

Could it be that my real object of scorn was not so much the oath requirements in the public citizenship ceremony that I did not know the first thing about, but rather, the “Muslim garb”, as I pejoratively referred to it? Specifically, the veils that some Muslim women are obliged to wear, which I could not imagine any woman choosing to freely don.

In confronting that question, I did not like what I was beginning to see in myself. For the real issue it spoke to was so much larger than the public citizenship ceremony.

To my ethnocentric and intolerant eye, those simple pieces of cloth seemed oppressive, coercive and inconsistent with Canada’s idea of women’s equality.

Based on nothing but my ignorant suppositions and my unfamiliarity with the niqab’s cultural and religious significance, I felt quite self-righteous concluding that no woman should feel “compelled” to wear a niqab while giving her oath of citizenship.

Notice how I neatly inverted the central question to reconcile my ignorance and intolerance?

I flipped the policy that is discriminatory in its own right and that forces about 100 Muslim women each year to commit what they regard as a grave offence to their religious beliefs and personal wishes into a policy that somehow “protects” them. And in the name of women’s equality and out of respect for all women, no less.

I converted it into a policy that imposes a “reasonable requirement” for all new citizens to openly take their oaths without oppression or coercion. All without thinking.

Fact is, I was completely ill-equipped to form a reasoned opinion on the entire issue, let alone to pass judgment on Zunera Ishaq’s legal, moral and political plea for our federal government to come to its senses.

Until recently, I could not have told you the difference between a niqab, a hijab, a burqa, a chador, a rusari, a maghnae, or a manteau. I sort of know now, but not really, cultural illiterate that I am.

All I knew when I rushed to judgment was that such face coverings seemed anathema to the act of openly embracing Canadian citizenship, and as such, they offended my distinctly WASPish sensibilities. As if that was reason enough to support the Harper government’s bigoted, insensitive, unnecessary and politically motivated change in policy.

A policy that the courts have repeatedly ruled is unlawful, contradicted as it is by the government’s own Citizenship Act and its related regulations.

“Niqab.”

For many Canadians, it’s a new five-letter word. One that is being politically exploited to provoke a four-letter-firestorm around an intentionally inflammatory policy that has proven to be illegal.

It is an issue that is being stoked for purely partisan advantage and that is being fueled by the worst of what lies within our nation’s “old stock” blood, to use Stephen Harper’s term.

Suddenly the niqab controversy is Quebec’s new vote-turning passion, as it has also fired up the social networks and become the talk of the town across Canada.

It is an issue that has once again exposed Canada’s ugly face of intolerance, however much we typically succeed in hiding it, ever telling ourselves that we are too big to be so small.

Politics and opinion polls say otherwise.

Incredibly, it seems that Stephen Harper’s strategy might be working as intended.

It is an issue that Canadians have gobbled up hook, line, and sinker, taking the bait to debase themselves as they reward those who are least deserving of our trust.

How sad.

We have allowed ourselves to be manipulated by Harper’s gratuitous distraction that was always aimed at dividing Canadians against one another and bleeding support away from his party’s political opponents—in a crass appeal to intolerance, masked as patriotism.

Remarkably, he is actually winning votes by championing a cause whose root value of intolerance is the antithesis of all that we claim to most value in Canada.

And if we are so stupid as to continue playing along, the niqab controversy might put him back in the Prime Minister’s office.

Mr. Harper seems to be taking his "nation-building" lessons from Donald Trump, pandering to people’s fears and prejudices, as he wraps his assault in the flag that is held to stand for the opposite of all it is being used to inflame. 

The niqab issue is Harper’s equivalent to Trump’s “Mexican wall”.

It is a big, ugly monstrosity that exists only in our minds. It has already imposed a heavy price, as its architects and apologists clamour to embrace its vile intent in the name of all that’s virtuous.

The shadow that Harper’s Niqab Divide casts on our espoused vision of Canada is palpable.

The threat it suggests to the political change that the vast majority of Canadians purport to want is also too real to ignore.

Building new walls between Canadians is no way to build our nation. Nor is it a path to progress that is worthy of Canada’s true promise and potential.

It's time we focused on what unites us, instead of rewarding the party that is trolling for votes in the wallows of incited bigotry, discord, fear and distrust.

If you care to further consider the Niqab controversy in light of its legal realities, read on.

Part 2: Deconstructing the Niqab controversy

Regardless of how one comes down on the niqab issue, it needs to be considered in perspective. Fairly, rationally, and in appreciation of the facts that the courts have so ably articulated.

To recap, the controversy centers around the case brought to the Federal Court by Ms. Zunera Ishaq, a Pakistani national and a devout Sunni Muslim.

She took exception to the policy imposed by the Harper government in 2011 that would forbid her to wear her niqab, a veil that covers most of her face, while reciting the oath of citizenship, during the public citizenship ceremony.

As she put it, “I feel that the governmental policy regarding veils at citizenship oath ceremonies is a personal attack on me, my identity as a Muslim woman and my religious beliefs.”

Ms. Ishaq objected on religious grounds that were previously accommodated by allowing people like her to swear their oaths in private, with or without their niqabs removed, in addition to signing their oaths as proof of their commitment to its content and requirements.

She did not oppose the requirement to be heard saying her oath, even suggesting that if that was the government’s main concern, it could seat her closer to the front at the public ceremony, or even attach a microphone to her so that her words could be audibly heard and recorded.

Importantly, Ms. Ishaq had no compunctions about removing her niqab to prove her identity. She did just that, in applying for her driver’s license.

Also pertinent is that Ms. Ishaq was granted her citizenship back in November 2013, after taking and passing her citizenship test.

As Federal Court Justice Boswell noted in his February 2015 judgment, she “unveiled herself so that the official could confirm her identity before taking the citizenship test.” She “removed her niqab for purposes of identification in accordance with section 13.2 of CIC’s policy manual, CP 15: Guide to Citizenship Ceremonies (as amended to 21 December 2011).”  

As such, the question of Ms. Ishaq’s identity or security is irrelevant to the current debate, except for the fact that so few Canadians are probably aware of what actually transpired.

Moreover, she was always firmly committed to taking the oath of citizenship that is legally required under the Citizenship Act for anyone to be considered a citizen, as opposed to simply being accepted as a Canadian resident.

That oath is short and sweet:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

In short, the contents of the oath and the requirement to swear it, unveiled and in private—in addition to the public ceremony and to signing that oath in writing—have never been the problem.

They were certainly never a problem before the Harper government changed the rules, in December 2011.

What is at issue is the Harper government’s insistence that anyone taking the oath of citizenship now has to be at least plausibly capable of being seen to say the magic words in public, with no face covering.

Presumably beards and droopy moustaches are just fine.

Never mind that as Justice Boswell noted, “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.”

Set aside that no one actually specifically listens to anyone taking their public oath of citizenship, to ensure that any new citizen actually says the vow to which he or she also attests to embrace in writing, by dint of their signature.

Forget the fact that no one visually records or reads their lips as they mouth that single, short sentence that Subsection 19(2) of the Citizenship Regulations mandates “shall be taken at a citizenship ceremony”—“[u]nless the Minister otherwise directs…”

What is at issue is whether it is a reasonable infringement of Muslim women’s religious and cultural beliefs to coercively oblige them to unveil themselves in public, in front of strangers. In violation of their religious values, as a precondition for Canadian citizenship.

And for what reason?

The Harper government still has not said, other than its vague belief that what was previously allowed and accommodated is no longer acceptable. As if it was a mistake and inadequate.

Why?

It has offered no lucid rationale for its intolerant policy, which it quietly adopted without any public consultation.

The following passage from Justice Boswell’s ruling shows just how shallow and arbitrary its reason for changing the policy really was:

The Minister at the time said during an interview with the CBC on December 12, 2011, that the Policy was adopted after one of his colleagues told him about a citizenship ceremony where four women had been wearing niqabs. The Minister stated in this interview that taking the citizenship oath ‘is a public act of testimony in front of your fellow citizens, it’s a legal requirement, and it’s ridiculous that you should be doing so with your face covered’; and also that: ‘[y]ou’re standing up in front of your fellow citizens making a solemn commitment to respect Canada’s laws, to be loyal to the country, and I just think it’s not possible to do that with your face covered.’

That’s it. Harper has also said as much.

It is a rationale based on hearsay, related to the former Minister, that is entirely subjective, utterly ignorant of Canada’s citizenship history and practices, and contemptuous of the culture, religion and related values that were previously accommodated.

That aside, the policy change requiring people like Ms. Ishaq to unveil during the public oath of citizenship was found by the Federal Court to be unlawful and directly contrary to the Citizenship Act and to its regulations.

That decision was “overwhelmingly supported by the evidence,” according to the Federal Court of Appeal, which dismissed the government’s appeal in its September 15^th judgement.

If you have not done so already, I would urge you to read those judgments here and here.

If nothing else, this testimony from the Assistant Director of Citizenship Program Delivery at Citizenship and Immigration Canada speaks volumes:

Q.        But there wasn’t a specific provision about witnessing the oath being taken and seeing people take the oath. That was added in in December of 2011; is that correct?

A.        That’s right.

Q.        Right. So the difference was that prior to December 2011 the requirement was the judge be satisfied that people had taken the oath and in December 2011 the policy was changed to require the judge to witness the person taking the oath as opposed to hear the person taking the oath, for example.

A.        That’s right.

Q.        …And you don’t know of any legislative authority for that requirement; is that correct?

A.        That’s correct.

Q.        …since that time, according to this policy, if a person is not seen taking the oath by some official, their certificate can be removed…from the pile; is that correct?

A.        That’s correct. [Emphasis added]

Can you imagine?

We are now in the midst of this full-blown political debate over a policy that was implemented without “any legislative authority”—according to the government’s own senior officials.

And now many voters are ostensibly falling back into the Conservative fold because of the Harper government’s policy bungling, which inadvertently conspired to put this racially imbued issue firmly on the election agenda.

Because someone who was granted her Canadian citizenship was denied the ability to officially be honoured with that privilege, due to a discriminatory new policy that flies in the face of both her profoundly held religious beliefs and of Canada’s greatest virtue.

Only in Canada, you say? Indeed. Shame on us.

Intolerance aside, this debacle demonstrates the Harper government’s incompetence, which it now indirectly hopes will serve as its saving grace, to make this election turn on the Niqab Divide, aided and abetted by the angry, intolerant mobs.

Know this.

After the first judgement came out last February, the government did not try to fix its law that effectively outlawed and nullified its own new policy.

Nor did it try to clarify the policy flaw it put in place in December 2011, in Citizenship and Immigration Canada’s (CIC) Guide to Citizenship Ceremonies policy manual.

Incredibly, the Harper government’s own lawyers unsuccessfully argued before the Federal Court that judges actually still had the discretion to ignore and override the government’s new policy.

They argued that the new policy was only a “non-binding guideline” that “is not mandatory and citizenship judges are free not to apply it,” to quote the judgement.

They argued that the policy was not even “really addressed to citizenship judges,” but rather, only to CIC’s staff. As such, the government maintained that citizenship judges could at any time waive the requirement for people to remove their facial coverings during the public citizenship ceremony. That they could otherwise accommodate Muslim women by allowing them to audibly recite their oaths in private, with or without their niqabs.

They were wrong on all those points, in law and fact.

The courts found that the government’s new no-niqab policy was actually meant to be binding, so as to leave no room for judicial discretion. And it was invalid insofar as it contradicted the law and regulations with which it conflicted.

Even worse is this: that same government has now inexplicably ruled out fixing its law and its unlawful policy to provide for the flexibility that it purported it always intended to maintain. It now regards that option as an unthinkable “concession.”  

It is unwilling to change its own policy to make it not only legal, but even consistent with the position its own lawyers advanced in asserting the judicial latitude that the new rules were supposedly intended to preserve.

Instead, the Harperites plan to appeal its illegal and unreasonable policy to the Supreme Court of Canada. At what unnecessary expense to taxpayers, we can only guess.

And let’s be clear, the Charter challenge that was also raised in this case was never considered by the courts.

Why? Because the government’s own law was enough to make its own policy illegal, irrespective of the Charter of Rights and Freedoms.

Any appeal by the Harper government to the Supreme Court on this case won’t change that fact.

The Supreme Court will not suddenly wade into the Charter question that was ruled to be inconsequential to the flawed policy that the Harper government wrote. A policy, no less, that was trumped by the federal government’s own law, which it chose not to fix, even to make it as flexible as its own lawyers incorrectly maintained it was.

This, dear citizens, is the hill upon which the Harper government has chosen to stake its flag in declaring what it means and takes to be “Canadian.” Pathetic.

Let’s move on, Canada.

We are so much bigger than this issue that only reduces our country in stature.

As Tom Mulcair says, no government should be trying to tell Canadian women how to dress, least of all without a good reason. In flagrant contempt of the spirit, if not also the letter, of the Charter of Rights and Freedoms.

Regardless of how we may feel about the role of such religiously linked face coverings in public citizenship ceremonies, surely it is an issue that pales in material importance to our country and its future.

Vital as it surely is particularly to Canada’s Muslim community, in the larger scheme of things, it is such a relatively minor matter compared to the other big issues that are on the table and that all beg for real change.

Mulcair, Trudeau, and May all agree on that point.

Only Harper and the Bloc’s separatists see it as their ticket back to Ottawa, whatever its harm to Canada. 

It would be such a mistake to reward the party that caused this unnecessary niqab controversy by returning its narrow-minded authors to elected office as government.