OTTAWA—The issue of the niqab has brought to light irreconcilable differences between the main federal parties as to who — if anyone — should be compelled to leave his or her religious garments at the door of a Canadian citizenship oath ceremony.

The Conservatives and the Bloc Québécois argue — with one voice — that no one should be allowed to swear the oath from behind a face-covering veil.

The prime minister initially described the practice as “offensive.” On Tuesday Stephen Harper ratcheted up his rhetoric. He said the niqab was rooted in an “anti-women culture.”

The New Democrats and the Liberals believe that the government’s drive to ban the niqab from citizenship ceremonies has more to do with wedge politics than with principle.

They argue that an inevitable by-product of a Harper-led crusade against the niqab is to stoke anti-Muslim prejudices — especially against the backdrop of the international fight against Islamic extremists.

They have both objected to the Conservative decision to appeal a Federal Court ruling that struck down the ban on face-covering niqabs during the citizenship oath last month.

That decision was announced by the prime minister himself on a visit to Quebec — ground zero in the debate on the accommodation (or not) of religious minorities. The Conservative party has also been using the niqab appeal as a fundraising talking point.

But who is the judge who precipitated this uneasy political debate and what did his ruling actually say?

Justice Keith Boswell is a Conservative appointee who joined the Federal Court bench less than a year ago. Prior to that, he had been a card-carrying Tory for three decades. Over that period he was an insider of P.E.I.’s Conservative backroooms.

Little in that background predisposed Boswell for the role of judicial activist and, indeed, he steered well clear of constitutional considerations when he delivered his February ruling.

His decision was strictly grounded in legislative incoherence on the part of the federal government.

In particular the ministerial directive to ban niqab (issued by Jason Kenney back when he ran the immigration department) is in conflict with the regulations that govern the citizenship process.

That’s a fact that the federal government lawyers themselves implicitly acknowledged when they defended the policy last fall.

It may surprise many of those who have been listening to the prime minister’s niqab rhetoric to learn that his lawyers actually told the Federal Court that the ban was not mandatory “and citizenship judges were free not to apply it.”

That would probably also have come as news to many citizenship judges as the government has never presented the ban as anything other than a prescription that was meant to supersede whatever discretion the regulations afforded citizenship judges.

By striking one down to uphold the other, Boswell’s ruling essentially cleared up what can charitably be described as government-induced ambiguity.

What Justice Boswell did not do was to pronounce on the Charter-related arguments against the ban. Having found justifiable cause to strike down the measure for lack of a coherent legislative foundation he decided he did not need to go the constitutional route.

But that’s a path that will almost certainly eventually be taken. At some point the courts will be asked whether there are circumstances when imposing a ban on niqabs — be it during a citizenship oath or in a polling station — is a reasonable limit an individual’s fundamental right to freedom of religion.

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Meanwhile, Harper has opened a murky new front in the discussion — one that does not just involve the incongruity of a male prime minister purporting to protect women’s rights by telling them how to dress.

For if the niqab is the product of a culture that is anti-women and if it must be banned from citizenship ceremonies on that basis, then what is one to do about the dress code prescribed for women of the Hasidic community or the religious symbols associated with Christian churches that bar women from the ministry ?

Is there a degree of religious-based anti-womanism that the prime minister believes Canadian values can accommodate and if so, who should draw the line? Does he seriously think that it is for governments to make freedom of religion a two-tiered right?

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