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).
…the claimant could argue that although some sects of Islam do not consider it mandatory to wear a niqab, it is enough to demonstrate that the person who wears a niqab has the sincere religious belief that she must not remove it in public. 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 religious dogma. Thus, a sincere belief in a religious practice is what the court will be looking for (Syndicat Northcrest v Amselem,  2 SCR 55 .Once an individual demonstrates that his or her religious freedom is involved, the court must determine whether the interference or burden on the religious practice is more than trivial or insubstantial. There must be objective proof of interference with the observance of a religious practice (SL v Commission scolaire des Chênes,  1 SCR 235).
Once the violation of freedom of religion has been established, the government can justify an infringement under Charter section 1 if it establishes that a limitation that is prescribed by law is reasonable and demonstrably justified in a free and democratic society. The factors that must be examined at this stage of the analysis were applied in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, a freedom of religion case in which the Alberta government’s requirement that all individuals have a photograph on their driver’s licence (which was against the Colony’s religious beliefs) was upheld as necessary to minimize identity theft.
While the Charter sections 2(a), 15(1) and 1 arguments that follow are speculative, some of the points were made (but not commented on by the Court) in Ishaq. In applying the legal principles to determine whether a policy or law that requires one to remove one’s niqab violates Charter rights, a court would first determine whether the individual had a sincerely held belief. In this case, the claimant could argue that although some sects of Islam do not consider it mandatory to wear a niqab, it is enough to demonstrate that the person who wears a niqab has the sincere religious belief that she must not remove it in public. The government might argue that she had removed the niqab in the past, but the case law indicates that it is the current belief and practice that are relevant (Amselem). Further, she would have to provide objective proof that the interference with her religion was more than trivial. She could argue that the requirement to remove her niqab in public would compel her to abandon, albeit temporarily, a religious practice and put her in the position of choosing either her religious beliefs or her dream of becoming a citizen. The government may argue that the interference with her religious freedom would be minimal because the removal of the niqab would only be for the short period of time that the veil would be removed during the making of the oath. She could counter that it is the public removal—even for a short period—that would amount to a significant interference with her religious belief.
The Charter section 15(1) argument would be that the removal policy disproportionately affects Muslim women like her and perpetuates stereotyping and prejudice against them, thus amounting to discrimination on the basis of religion and sex. The response to this argument would be that there is no proof of pre-existing disadvantage, stereotype or prejudice that would be perpetuated by requiring a woman to show her face while she takes the oath. Further, the requirement that she remove the veil only briefly during the ceremony responds to the woman’s needs and circumstances while still satisfying the important objective of ensuring that the oath is given.
If violations of Charter sections 2(a) and 15(1) are proven, the government would seek to justify them using Charter section 1. First, the government would have to establish that it has a pressing and substantial objective (R v Oakes,  1 SCR 103). Assuming that policies are considered to be “prescribed by law”, the fact that the policy is not currently found in a law or regulation could support an argument that it does not reflect a pressing and substantial objective. However, the federal government introduced the requirement as law by introducing amendments to the Oath of Citizenship Act on June 19, 2015. Assuming it became law (and not policy), would the objective be pressing and substantial? The government’s news release of June 16, 2015 provides the following reasons for the amendment :
Canadians expect that new citizens should show their face when swearing or affirming the Oath in community with others, at the very moment they become part of the Canadian family. This means they are committing publicly to embracing Canada’s values and traditions, including the equality of men and women.
Assuming this objective is pressing and substantial, the government next would have to demonstrate that there is a rational connection between ensuring the oath is taken and a visual inspection (Oakes). In the real situation of providing an oath, the citizenship officials are only able to confirm that the participants’ lips are moving. In any event, every new citizen has to sign a declaration that he or she took the oath, which then binds him or her to it.
What is the correct legal standard by which to determine when an individual’s freedom of religion must give way to a government interest? Next, the government has to demonstrate that the policy/law requiring removal of the niqab minimally impairs her rights and freedoms (Oakes). A woman who wears the niqab could argue that since this policy would only apply to about 100 women per year, it would be possible for a female citizenship judge or official to take the woman’s oath in private. Alternatively, a woman wearing a niqab could be seated closer to the judge or official, or could wear a microphone so that the official or judge could hear her taking the oath. The government would argue that this would defeat the public act of reciting the oath openly and equally. Therefore, they would argue it is minimally impairing to require the public removal of the niqab once in a lifetime at a citizenship hearing.
Finally, the woman would argue that her interests outweigh those of the government (Dagenais v Canadian Broadcasting Corp,  3 SCR 835). Her interest in obtaining citizenship and the benefits that flow from citizenship (e.g., right to vote, mobility rights, feeling one is a true Canadian) as compared to retaining permanent residency if she cannot take the oath because she will not remove her niqab, outweigh any government interest in having all citizenship applicants taking the oath openly and equally.
It seems that the government’s notion of equality in this situation is very old-fashioned. The requirement of formal equality, or treating everyone alike, which was the rule in the first part of the 20th Century, was greatly expanded upon by the substantive equality requirements of Charter section 15(1). Since 1985, when this section came into force, it became necessary not only to look at the wording of the law, but also the impact or effect of the law on those to whom it applies. It is clear that the requirement that everyone, despite their religious belief or practice, appear at the oath-taking portion of citizenship hearings without facial covering would impose a burden on those who have that belief that is not imposed on others, who do not. And, the government’s justifications for the removal requirement that have been presented so far do not seem reasonable and justifiable on their face.
I would think one of the true benefits of being a Canadian is that we respect each other’s diversity and will accommodate difference, especially if there is no harm to others. This whole debate seems to be bringing out the unpleasant intolerant side of some of us, which is un-Canadian.