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Accueil > Canada > Questions et débats actuels > 2018 > Etude de cas : Zunera Ishaq c. le ministre de la Citoyenneté et de (...)

Etude de cas : Zunera Ishaq c. le ministre de la Citoyenneté et de l’Immigration

  • October 2017

Canada’s predominantly French-speaking province, Quebec, passed a bill in October 2017 banning people from having their faces covered when asking for or receiving public services. This bill targets the wearing of the full-face veil in the jurisdictions. However, Quebec Justice Minister Stéphanie Vallée said that Bill 62 does not specifically target religious symbols, because the law would apply, for example, to the hood, bandana or opaque glasses that would mask the face. The question of the full veil had already been raised in Canada.

On November 16th, 2015 Canada became the first western democracy to legally withdraw a ban against face-coverings specifically the niqab (face-covered except eyes) during the oath of citizenship. Canada’s Attorney General and Justice Minister, the Honourable Jody-Wilson Raybould formally retracted the application of appeal by the former Conservative government to the Supreme Court of Canada in the case of The Minister of Citizenship and Immigration v. Zunera Ishaq thus, ending a four-year (2011-2015) unlegislated policy guideline.

The affair started on December 12, 2011, when Canadian Immigration, Citizenship, and Multiculturalism Minister Jason Kenney announced that the Conservative Government was placing a ban on all face coverings during the oath of allegiance at Canadian citizenship ceremonies (see CBC). The Conservative government’s rationale was that an oath of citizenship is a public act of devotion and loyalty to Canada in front of one’s fellow citizens and as such cannot be taken by hiding one’s face. The ban was implemented as an immediate directive under Operation Bulletin 359 (Citizenship and Immigration Canada (“CIC”), Operational Bulletin 359. CIC policy manual CP 15 : Guide to Citizenship Ceremonies (the “Manual”)), which hastened the ban and extracted it from the legislative process and political representative debates.

On December 30th, 2013 a citizenship judge approved prospective Canadian citizen Zunera Ishaq’s application for citizenship. On January 14, 2014 Ms. Ishaq was due to recite her oath of citizenship. According to the guidelines in the Citizenship and Immigration Policy Manual (section 6.5 of the Manual [the Policy] “candidates wearing face coverings are required to remove their face coverings for the oath taking portion of the ceremony”). Ms. Ishaq objected to this requirement and maintained that her religious beliefs obligate her to wear the niqab in public. She argued that the Government’s policy infringed on paragraph 2(a) of the Canadian Charter of Rights and Freedoms, which affirms the fundamental freedom of conscience and religion. Ms. Ishaq filed for judicial review.

On February 6th 2015, Federal Court judge Keith Boswell ruled in Ms. Ishaq’s favor and deemed that the Government’s ban against wearing the niqab during the oath of allegiance at the Canadian citizenship ceremony as unlawful. Judge Boswell stated that the Government’s 2011 guideline, conflicted with current Citizenship Regulations that citizenship judges are to administer the oath of citizenship with dignity and solemnity that allows for the greatest possible religious freedom in the religious solemnization or solemn affirmation thereof. Moreover, Judge Boswell asked, how can a citizenship judge afford the greatest respect of the religious solemnization or solemn affirmation in taking the oath, if the policy requires the candidate to violate or renounce a basic tenet of their religion ? On March 9th 2015, lawyers for the Minister of Citizenship and Immigration filed a notice with the Court of Appeal to appeal the ruling (see National Post). They claimed that a Federal judge had committed several errors in fact and law. On September 15th 2015, in the judgment under appeal between the Minister of Citizenship and Immigration, and Zunera Ishaq, the Attorney General of Ontario sided with the Canadian Federal Court decision that overturned the Conservative government’s ban against the wearing of face-coverings during the oath of allegiance at Canadian citizenship ceremonies (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194). The former Prime Minister Stephen Harper defended his government’s appeal of the “niqab ban” by laying bare an exclusive ideal of what kind of Canadian had the “right” values. Many Canadians listened with discomfort to a sitting Prime Minister call their fellow Canadians who wear the niqab “offensive,” had values (although guaranteed in section 2a of the Canadian Charter of Rights and Freedoms) that conflict with Canadian values.

On October 19th 2015 in Canada’s forty second General election Canadians elected a new Liberal Government. In her first act as Canada’s Attorney General and Justice Minister, the Honourable Jody Wilson-Raybould formally and legally retracted the 2011-2015 “niqab ban” (see CBC) declaring that the retraction was a symbol of the values that make us Canadians, those of diversity, inclusion and respect for those fundamental values.

15 février 2018