I wrote last week that the case for banning the niqab during the swearing of the citizenship oath was weak and uninspiring. And before that, I wrote about Liberal Leader Justin Trudeau’s controversial remarks about the issue. In light of subsequent comments by Defence Minister Jason Kenney, Conservative MP Larry Miller and Zunera Ishaq, the woman who has challenged the government’s policy in court, let’s go at this debate at least one more time.

So Conservative MP Larry Miller said you should “stay the hell where you came from” if you insist that your claim to religious freedom in regards to the niqab should override a government directive about citizenship ceremonies, adding he is “sick and tired” of prospective Canadian citizens seeking to “change things” before they have received citizenship. And so now, he is sorry for any comments he made “beyond” the basic sentiment that the citizenship oath should be sworn without a niqab.

In that radio segment, Miller also offered some commentary on the legal case that is at issue here: suggesting that the Federal Court’s decision against the government was somehow flawed (“that isn’t right”) and agreeing with a caller who posited that if the government does not win its appeal of that decision, it would be demonstrated that something is “wrong”.

Miller’s declaration of precisely where in the hell one should locate oneself are being justifiably reported and reviewed, but his legal commentary is the basis for a specifically useful discussion. Or at least, it could be the basis for a specifically useful discussion. In exactly which way does Miller, or any other Conservative, or any other member of the government, believe that the Federal Court judge erred in his ruling? On what grounds should that ruling be overturned? On what basis should the government’s desire to see the niqab removed during the swearing of the citizenship oath trump a claim of religious freedom made by the wearer of a niqab?

Those questions would, presumably, get to the actual issues here.

Is there a practical argument for banning the niqab?

Zunera Ishaq, the woman whose legal challenge resulted in a Federal Court judge ruling against the government’s ban on the niqab during citizenship ceremonies, has written an op-ed for the Toronto Star to explain herself and her position. It’s an interesting read and she mounts a challenging argument on practice and principle.

My desire to live on my own terms is also why I have chosen to challenge the government’s decision to deny me citizenship unless I take off my niqab at my oath ceremony. I have taken my niqab off for security and identity reasons in every case where that’s been required of me, such as when I have taken a driver’s licence photo or gone through airport security. I will take my niqab off again before the oath ceremony without protest, so I can be properly identified. I will not take my niqab off at that same ceremony for the sole reason that someone else doesn’t like it, even if that person happens to be Stephen Harper.

When Jason Kenney announced the policy in December 2011, he included a claim to practicality in his argument: The minister said the removal of the niqab would allow judges “to ensure that all citizenship candidates are, in fact, reciting the oath as required by law.” But Kenney didn’t mention that consideration when he spoke with my colleague John Geddes last week, nor did he mention it during an interview with the CBC this weekend (go to the 7:40 mark for the relevant question and response).

It would make sense for Kenney to drop the practical argument because it would seem to be easily rebutted: Visibility is not needed to confirm someone says something, and a niqab doesn’t necessarily prevent the transmission of sound.

Similarly, the Canadian Press recently quibbled with Conservatives who tried to argue that banning the niqab during the oath was a matter of confirming identity.

How do we define religious considerations?

In his interview with this magazine, Kenney claimed “that a huge number of Muslims have reminded me that the face covering is not a religious obligation.” There’s an interesting discussion to be had here about theology, religion, culture and history (see Chapter 5 of this report on the wearing of the niqab in Canada), but it would seem to be of questionable utility when it comes to public policy, the law and the right to religious freedom.

Here I turn to the Supreme Court ruling in Syndicat Northcrest v. Amselem, a case involving four Orthodox Jewish men who wanted to setup sukkahs on their apartment balconies. A Superior Court judge had ruled that no religious obligation existed, and a court of appeal judge concurred, but a majority on the Supreme Court ruled that both that judge and the court of appeal had adopted “an unduly restrictive view of freedom of religion.”

Here is how the basis for a claim of religious freedom was consequently set out in the summary of Chief Justice Beverley McLachlin’s argument for the majority:

Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms ) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived‑as‑mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions. It is also inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom. Freedom of religion is triggered when a claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion . . .

Thus, what Jason Kenney or other Muslims or the general public believe about the niqab would seem to be rather secondary. But if the government wishes to mount an argument that the state should be able to determine the credibility of a claim to religious freedom, or that the courts should take a narrower view of a claim to religious expression, let’s hear it.

Do we want to put an individual’s rights to a vote?

In the midst of explaining his views yesterday, Larry Miller said he thinks most Canadians feel the same as he does about people who refuse to remove the niqab during the oath.

In its response to the Miller controversy, the Prime Minister’s Office stated its belief that “most Canadians, including new Canadians, would find it offensive that someone would cover their face at the very moment they want to join the Canadian family.”

In his interview with the CBC, Jason Kenney said the “vast majority” of Canadians agree with the government’s position.

And in his interview with Maclean’s, Kenney said the “vast majority of new Canadians . . . believe that there are certain important hallmarks of integration” and the “vast majority of Muslims that I’ve spoken with strongly supported my decision.”

All these claims are only relevant to the issue at hand if you believe that the extent of the rights of individuals, including the right to religious freedom, should be determined by popular vote. Unless that’s the argument here, the appeal to popular opinion is a red herring.

Is the citizenship oath analogous to another situation when the niqab is removed?

In his interview with the CBC, Kenney offered this comparison for removing the niqab during the saying of the oath: “It’s like when an individual does an interview with a government official on perhaps their immigration application. They should of course do so with their faces uncovered.”

An interview with a government official is not quite the public act that the oath is; I presume interviews are basically conducted in private. But, for the sake of argument, I am interested to know how this works. When an individual is interviewed about her immigration application, does she remove or lift the niqab only at the outset to confirm identification? Or must the niqab be removed for the duration of the interview? I’ve asked the office of Immigration Minister Chris Alexander that question and I will post the response when I receive it. (I suspect it might also matter whether a woman wearing a niqab has the option to request a female interviewer.)

But never mind the Charter (at least for now)

Mind you, it wasn’t any of the above that defeated the government’s case at the Federal Court: The judge didn’t need to deal with the Charter because he found a crucial discrepancy between the directive from Kenney and the regulations that govern the citizenship process, in which case, he gave precedence to the regulations. In short, the judge viewed the ban of the niqab as incompatible with the regulatory instruction that, in administering the oath, citizenship judges should allow “the greatest possible freedom in the religious solemnization or solemn affirmation thereof.”

If we limit ourselves to this terrain, I have at least two questions.

First, if the government wishes to see the niqab banned, why doesn’t it change the regulations to reflect that? I asked the office of Minister Chris Alexander that question and a spokesman responded, “We are not going to speculate on hypotheticals and we are going to make our arguments in court.” (In an op-ed published today, law professor Richard Moon suggests the government amend the regulations, though Moon notes that would trigger a Charter challenge, which the government would lose.)

Second, and more crucial, it seems to me, if the government adamantly believes the niqab should be banned during the oath, why did the government apparently tell the court that the directive was not mandatory, but optional? Here, again, are the first three sentences of paragraph 30 of Justice Boswell’s ruling:

The Respondent argues that this application is premature. In its view, the Policy is not mandatory and citizenship judges are free not to apply it. As such, there is no way to know what would have happened had the Applicant attended the ceremony and refused to uncover her face.

So it would seem that while the government is publicly declaring that wearing the niqab during the oath is unequivocally not something that should be allowed, it has otherwise defended the policy as quite open to equivocation. Beyond the legal arguments here, that seems to my untrained eye like a serious complication for the government’s political argument.

Whatever Larry Miller’s views of where the hell one should situate oneself, the government’s basic argument would seem to amount to this: that a citizenship ceremony is of a particular nature that the government should be able to impose a standard of dress for it, regardless of an individual’s claim to religious freedom, so far as the niqab is concerned. In light of all else—and, I might add, the Supreme Court’s ruling on when a niqab should be removed during a trial—it remains a weak and uninspiring argument. It is a principle without a practical basis that would have the government dismiss a fundamental right. It is to presume that the state can, without substantial cause, dictate attire and place a limit on one’s religious freedom.

As a footnote: In his interview with the CBC, Kenney claims that his directive wasn’t a matter of controversy when he announced it in 2011. That’s only sort of the case. It didn’t raise much of a political controversy so far as Parliament Hill is concerned. But beyond Ottawa, there were concerns and objections—see here, here, her e and here. A brief dispatch in this magazine conveyed the view of one law professor that the ban wouldn’t survive a legal challenge: “It’s not in accordance with any interpretation of Canadian law.”