OTTAWA – A Federal Court of Appeal panel has dismissed a government appeal over a ban on face coverings at citizenship ceremonies in what amounts to a major policy rebuke of the Harper government.
The three justices ruled from the bench, saying they wanted to proceed quickly so that Zunera Ishaq, the woman who initially challenged the ban, can obtain her citizenship in time to vote in the Oct. 19 federal election.
Ishaq, a 29-year-old woman with devout Muslim beliefs who came to Ontario from Pakistan in 2008, refused to take part in a citizenship ceremony because she would have to show her face.
The swift ruling left Ishaq speechless, although she said she looks forward to casting her ballot.
One of her lawyers, Maryls Edwardh, said the Immigration Department would be contacted this week so she could attend a citizenship ceremony – accompanied by her lawyers “just in case.”
The Harper government’s rule banning face coverings at such ceremonies was earlier found unlawful by the Federal Court.
Justice Department lawyer Peter Southey argued unsuccessfully that the lower court justice made errors in his original decision to overturn the ban.
Appeal Justice Mary Gleason said the court had no reason to interfere with the earlier ruling.
The ban on face coverings sparked a bitter debate in the House of Commons when it was first announced.
At Tuesday’s half-day hearing in Ottawa, a Justice Department lawyer told court that the government never meant to make it mandatory for women to remove their face coverings for citizenship ceremonies – a position that left both the judge and Ishaq’s lawyers scratching their heads.
The admission appeared to be a climbdown from the Conservative government’s past position on the issue.
The controversial edict was a regulation that had no actual force in law, Justice Department lawyer Peter Southey told a Federal Court of Appeal hearing.
“It indicates a desire in the strongest possible language,” Southey said – an argument that appeared to come as a surprise to Justice Johanne Trudel.
“I cannot see how this is not mandatory,” Trudel said during the hearing.
Southey later told the court that the immigration minister was conceding that he “could not impose a mandatory rule in a guideline” for the purposes of this appeal.
Lorne Waldman, the lawyer for the woman at the centre of the case, dismissed Southey’s argument, saying everyone from former immigration minister Jason Kenney , his successor Chris Alexander and even Prime Minister Stephen Harper have said in public they see it as a mandatory policy.
Reading from internal government emails, Waldman told court there was not “one iota of discretion” within the policy.
“Everything says mandatory, no discretion – that’s the facts of the case.”
The controversial case focuses on whether a Muslim woman should be required to remove her face covering to take the oath of citizenship.
Outside court, Ishaq questioned the federal government’s new line.
“If it’s not mandatory I would simply say, why they are fighting for it? Just let me go,” she said.
“I can’t even make sense of the statement – what the lawyer said about it that it’s not mandatory. If it’s not mandatory, so why that all this fuss is for?”