The 2015 Canadian court case Ishaq vs. Canada (Minister of Citizenship and Immigration) brought religious freedom and civic responsibility head-to-head. Zunera Ishaq, a Muslim woman, challenged a government policy requiring her to remove her niqab while reciting the citizenship oath. The Federal Court ruled in the woman’s favour and determined that it was unlawful for the government to ban new citizens from reciting the oath with a face-covering veil.
Zunera Ishaq (Image: Aaron Vincent Elkaim for the National Post. Permission to use photo granted by the photographer)
Three years later, this pivotal case was put under the microscope once again, this time from a feminist perspective, by a PhD student at York University's Osgoode Hall Law School, Dana Phillips. Specifically, Phillips revisits the fact that the court dismissed motions for intervention by feminist (and other equality-seeking organizations) because it believed that these groups were improperly relying on unproven social facts and social science research.
Dana Phillips
“I argue that the court unfairly characterized the submissions of the feminist interveners in a way that impedes such organizations from effectively supporting equality and access to justice in litigation,” says Phillips, who believes that litigation could be enlightened by and contribute to the production and circulation of feminist knowledge. “At a time when feminists are seeking to combat reductive stereotypes about immigrant, Muslim and niqab-wearing women, that seems awfully important,” she emphasizes.
Interestingly, Phillips wrote this article for a course she was taking as part of a new and very innovative program at Osgoode called Feminist Advocacy: Ending Violence Against Women Clinical Program. “I had the privilege of participating as a graduate student in the pilot year,” she explains.
The resulting paper, “Ishaq v Canada: ‘Social Science Facts’ in Feminist Interventions,” was published in the Windsor Yearbook of Access to Justice (2018).
Overview of the 2015 case
Zunera Ishaq is a Canadian resident and devout Muslim who chooses to wear a niqab, a veil that covers women’s faces in accordance to a specific interpretation of modest dress. Most Muslim scholars believe that women’s covering of the face is not a requirement of Islam; however, a minority, for example in the Salafi movement, believe that women are required to cover their face in public or places where they may encounter men who are not related to them (Wikipedia).
The policy of the office of Citizenship & Immigration Canada (CIC), at the time of the case, stated that this veil must be removed during the citizenship test, prior to the oath, for identification purposes:
13.2. Full or partial face coverings: Candidates for citizenship wearing a full or partial face covering must be identified.... The candidate must be asked to reveal her face to allow the CIC official to confirm the identity against the documents on file. The candidates must be advised at this time that they will need to remove their face covering during the taking of the oath. Failure to do so will result in the candidates not receiving their Canadian citizenship on that day.
Ishaq removed her niqab during the citizenship test, in adherence to CIC’s policy, but she did not do so during the oath. “My religious beliefs would compel me to refuse to take off my veil,” she explained. “I feel that the governmental policy regarding veils at citizenship oath ceremonies is a personal attack on me, my identity as a Muslim woman and my religious beliefs.”
As noted, the court ruled in her favour, stating that the existing government policy was unlawful.
Zunera Ishaq, second from right, leaves the Federal Court of Appeal. (Image: The Canadian Press/Patrick Doyle. Permission to reproduce image granted by the Canadian Press)
Several organizations sought to intervene but were not allowed
In her paper, Phillips re-examines this controversial case at the Federal Court of Appeal, and the role of social and legislative facts, and social science research, in feminist interventions in public interest litigation.
She underscores the fact that several organizations brought motions to intervene, but were prevented by the judge, Justice Stratas, who believed that the interveners’ proposed submissions were too vague. The judge believed that the interveners were trying to advance "social science facts" without properly proving them in evidence, Phillips emphasizes.
Concludes that judge’s decision departs from approach of other Canadian courts
Phillips meticulously presents and considers other similar court cases and concludes that Justice Stratas’s decision “departs from the generous approach to public interest interventions sanctioned by the federal and other Canadian courts.”
This has serious ramifications, according to Phillips, because it threatens the balance between the individual and systemic dimensions of a case and raises some important questions about the potential for feminist and other equality-seeking organizations to marshal their knowledge and expertise in litigation.
Legal advocate emphasizes 'chilling effect' of decision
Phillips’s analysis was also informed by interviews with two legal advocates who remained anonymous – “X” and “Y,” members of the organizations that brought motions to intervene. “X” stated that if all courts adopted an approach similar to the Ishaq vs. Canada case, the result would be a “chilling effect” on interventions.
Phillips hopes that the next court takes a more contextualized view of the facts. She adds, “Feminist advocacy inside the courtroom connects to the world beyond it.”
To read the paper, “Ishaq v Canada: ‘Social Science Facts’ in Feminist Interventions,” Windsor Yearbook of Access to Justice (2018), visit the website. To learn more about Phillips, visit her profile on the Osgoode site. To learn more about the program, “Feminist Advocacy,” visit the website. To read the Federal Court case, visit the website.
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By Megan Mueller, senior manager, Research Communications, Office of the Vice-President Research & Innovation, York University, muellerm@yorku.ca