Court rejects feds’ appeal for stay in niqab case

Zunera Ishaq talks to reporters outside the Federal Court of Appeal after her case was heard on whether she can wear a niqab while taking her citizenship oath, in Ottawa on Tuesday, September 15, 2015. THE CANADIAN PRESS/ Patrick Doyle

The woman at the centre of Canada’s legal niqab battle won a major victory Monday as the Federal Court of Appeal dismissed the government’s request for a stay in a ruling earlier this month that would allow Zunera Ishaq to wear a niqab during her citizenship ceremony.

Court of Appeal Justice Johanne Trudel denied the government’s application to put the Sept. 15 decision on hold pending an application to appeal the case at the Supreme Court of Canada.

Trudel found the federal government failed to prove that allowing Ishaq to take her oath of citizenship would cause “irreparable harm” to the public interest.

READ MORE: Tories highlight what they call ‘barbaric cultural practices’ ahead of French debate

“I am pleased that the courts have reaffirmed my right to citizenship and to vote,” Ishaq said in a written statement to Global News issued by her lawyer Lorne Waldman.

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“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,” Ishaq said. “I’m also disappointed that Mr. Harper continually twists the facts of my case for his gain.

“I wish to confirm that I will be identified without my veil for the purposes of the ceremony. 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.”

Ishaq, 29, initially challenged a ban by the federal government on wearing a niqab after being prevented from taking part in a citizenship ceremony while wearing it.

Ishaq, a Pakistani national and permanent resident of Canada since 2008, has completed all the stages of citizenship except the ceremony. She wants to do in order to vote ahead of the Oct.19 election.

Trudel’s ruling noted the feds’ argument of “irreparable harm” is inconsistent given the government lawyer’s argument before federal court earlier this month that the policy was technically not a mandatory ban on niqabs at citizenship ceremonies – only “an encouragement in the strongest language possible.”

READ MORE: Nenshi fires back at Kenney for comments on niqab ban

“It is simply inconsistent to claim, on the one hand, that a policy has no binding effect on decision-makers, but that irreparable harm would result if that policy was to be declared unlawful on the other,” the ruling reads.

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“Citizenship and Immigration Canada had valid guidelines and procedures to ensure that citizenship candidates take the oath prior to the adoption of the Policy. … These guidelines and procedures are undisturbed by the finding that the Policy is unlawful. There is no legislative or regulatory void.”

The Tories, for their part, say they plan to introduce new legislation banning face coverings during citizenship ceremonies within 100 days of their reelection.

“We believe that covering your face during a citizenship ceremony – at the very moment that you are welcomed into the Canadian family – is contrary to the Canadian values of openness and equality,” Conservative Party spokesperson Stephen Lecce said in an email.

“We are disappointed in the Court’s decision, especially as we were waiting on the Supreme Court to hear our appeal. We have committed to rectifying this matter going forward by introducing legislation that will require one to show their face while swearing the Oath of Citizenship. Legislation will be introduced within the first 100 days of a reelected Conservative Government.”

The niqab, and whether government can tell women when not to wear it and similar face-covering garments, has become a flashpoint on the federal election trail.

The issue led to particularly fiery exhanges during the campaign’s two French-language debates.

READ MORE: NDP continues decline as Tories, Liberals battle for first in new Ipsos poll

“Never, never will I say to my daughter that a woman has to cover her face because she’s a woman,” said Harper during a debate on Sept. 24

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The Conservatives have tried to position the debate as one of gender equality, calling it a symbol of “misogyny” even though Ishaq and some other Muslim women say they’re choosing to wear them for personal religious reasons.

The NDP, Liberals and Greens have accused the Conservatives of exploiting the divisive issue to distract voters from more important issues like the economy.

Some Muslim groups, meanwhile, have raised concerns that the niqab debate, and such Conservative plans as a hotline for “barbaric cultural practices,” are inflaming racist and xenophobic anti-Muslim sentiment. Last week, a pregnant woman in Quebec was assaulted when two teenagers pulled off her veil; this week in Toronto, a woman wearing a niqab was attacked at a mall.

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