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Federal court rejects Ottawa’s bid to suspend niqab ruling

October 5, 2015

By Sean Fine, Globe and Mail |

The Conservative government’s bid to stop a Muslim woman from wearing a face veil while taking the oath of citizenship appears to have failed, after the Federal Court of Appeal refused to suspend its ruling from last month that the government’s policy is illegal.

The niqab issue has become pivotal in the federal election. Polls show the government’s stance is popular with Canadians, and the NDP appears to have tumbled, especially in Quebec, since opposing the government’s position on the niqab. Barring an appeal of the latest court ruling, Zunera Ishaq, a Pakistani immigrant living in the Toronto area, is free to become a Canadian citizen while wearing her niqab, thus getting the vote in time for the Oct. 19 election.

“I am pleased that the courts have reaffirmed my right to citizenship and to vote. I am disappointed with the government’s focus on my individual case when there is so much more that merits the attention of Canadians at this time,” Ms. Ishaq said in a statement on Monday, after the court issued its decision. “This has nothing to do with identity and everything to do with my right – and the right of all Canadians – to think, believe and dress without government interference.”

The appeal court’s ruling, the third defeat in a row for the federal government on the case, had a strongly dismissive tone. The court said that while it took no position on whether the government was raising an important issue – which must be shown if a court is to grant a stay of a ruling – Ottawa did not even come close to meeting the second requirement, that there would be “irreparable harm” if Ms. Ishaq were able to wear her niqab while taking her oath.

The government had argued that its policy on the niqab was not mandatory but merely a guideline for citizenship judges. If that is the case, “how can one raise a claim of irreparable harm?” Justice Johanne Trudel wrote, joined by two other Federal Court of Appeal judges.

The Federal Court of Canada had ruled in February that the government’s mandatory policy on the niqab was unlawful, saying that it conflicts with regulations in the Citizenship Act that stress respect for religion, and that the act says cabinet approval is needed to change the rules of the ceremony. In 2011, then-citizenship and immigration minister Jason Kenney issued an edict changing the rules, over legal advice, government documents show.

Three judges of the Federal Court of Appeal agreed last month that the rule was mandatory, not a guideline, and could not be imposed without cabinet approval. The federal government then asked the Supreme Court of Canada to hear an appeal, and while it waited for word from the high court, it asked the Federal Court of Appeal for a stay.

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