MONTREAL—There are no statistics to document how many veiled Muslim women take the oath of citizenship every year in Canada but for many voters, the actual number is irrelevant.

On principle a majority of them believe that a face-covering niqab has no place in the citizenship courts of a country committed to gender equality.

Conservative Leader Stephen Harper professes to agree and yet over the course of a four-year majority mandate he failed to legislate on the issue in a timely manner.

It was only on the very last day of the current Parliament — with the election just around the corner — that the Conservatives got around to introducing a niqab-related bill.

Until then the government had embarked on a course that might as well have been programmed to fail the first legal test that came its way. And that has turned the niqab into a political football for Harper and others to kick around in the election campaign.

In his days as minister of citizenship and immigration, Jason Kenney had instructed citizenship judges to require the removal of face-covering veils for the taking of the oath.

As the government’s own lawyers must have pointed out, that directive conflicted with an existing regulation that gives judges latitude to accommodate religious observance in their citizenship courts.

To no one’s surprise, the Federal Court ruled that a regulation could not be undone at the stroke of a ministerial pen. On that basis — and not because the religious rights of the Muslim plaintiff were at stake — the court struck down the Conservative veil ban for the second time last week.

If the Supreme Court agrees to hear the government’s appeal of its latest reversal, it will not address whether there is an irreconcilable conflict between the charter-guaranteed freedom of religion and a veil ban because that is simply not at issue in this case.

As an aside, if the top court were ever asked to pronounce on whether a veil ban is constitutional, the Conservatives might not like the answer, even if it turned out to be positive.

If the principle of gender equality or the secular character of the Canadian state could sustain a policy that requires the removing of the Muslim veil in order to take a citizenship oath, would the same argument not apply to just about any religion-related vestment or accessory?

The main consequence of the Conservatives’ efforts to keep their technically flawed case alive by appealing it all the way to the Supreme Court has been to turn the matter into a wedge issue in the election campaign.

At is happens, both the Liberals and the New Democrats oppose a ban on veils on constitutional and legal grounds.

The Conservatives are not the only party that believes there are points to be scored on the niqab issue. Support for a veil ban runs nowhere higher than in Quebec, the long-standing locale of a debate over the accommodation of religious minorities.

In a campaign that has the Bloc Québécois clutching at straws to justify its ongoing presence in Parliament, leader Gilles Duceppe has seized on the fact that the NDP — its main opponent in the election — is offside with the majority of voters on the niqab.

Since Bloc-sponsored attack ads came out late last week, NDP campaign signs have been defaced, with the word Islam scrawled across the face of some local Montreal candidates.

This may be only the first half of a larger game to be played out — if the Conservatives secure a majority — after the Oct. 19 election.

Harper has promised, if he is re-elected, to pass the niqab ban into law. If he wanted to pre-emptively bulletproof such a law from an all-but-certain charter challenge, he could use the notwithstanding clause of the Constitution.

It allows governments to shelter a law from the dispositions of the charter for a renewable period of five years. Over its 30-plus years of existence, it has never been used at the federal level. Some Conservative strategists have been shopping for an issue consensual enough to allow their government to break what has become a political taboo.

Support for the niqab ban extends well outside the Conservative base. It enjoys the backing of many progressive Canadians, including more than a few feminists. It would be tailor-made for that purpose.

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Those same strategists believe that once the ice is broken, the use of the notwithstanding clause to suspend the fundamental freedoms that get in the way of the government’s legislative ambitions could eventually become as banal as the now-routine production of catch-all budget bills.

From medically assisted suicide to life imprisonment without parole and including supervised injection sites for drug addicts, the list of issues on which the Conservatives could find it convenient to free themselves of an inconvenient charter of rights is an extensive one.

Chantal Hébert is a national affairs writer. Her column appears Tuesday, Thursday and Saturday.

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