Consider the niqab

The Canadian federal election may turn on Canadian tolerance or not, of Islamic face coverings. The bien-pensants may deplore the rest of us thinking that our tribal/national mores trump their tribal/religious mores, regardless of what the Courts may have to say on the subject. As for me, you know where I stand.

This is not a matter of conformity to some arbitrary tribal custom of Canadians; it is a matter of participation in the group. The law, which is axiomatically dedicated to defending the rights of individuals, fails to reckon that the assertion of a right generates a reciprocal assertion of a responsibility to respect that right. Which is to say that Canadians as a whole are burdened with the responsibility to respect the right of a person to hide their faces, on the grounds that for the face-hider to do otherwise is immodest. The ideas of modesty which might have been appropriate to desert dwellers of antiquity, which was the felt need to protect women from the leering eyes of males, is now asserted as a right in 21st century Canada.

Let us make a thought experiment out of this. Suppose that a religion held that all men and women, when taking an oath, are prescribed by God to do so naked. I mean naked, head to toe. Naked as in a nude beach naked. So they arrive at the place of taking the oath, and when the time comes, strip to their skins, raise their right hands and swear by God true and faithful allegiance to the Queen.

What would be the Court’s basis of objection? Law and social custom regulate that women shall be dressed from above the nipples to well below the pubis. While the Court ruled that Canadian women have aright to be topless, society has not so far lessened its disapproval of female breast baring.

So, would a Canadian court hold that, if a person’s sincere religious belief was that no oath can be properly undertaken while wearing clothes or jewelry, would it allow a person to take the oath naked?
If you look at the reasoning of Mr.Justice Boswell of the Federal Court, the answer is likely yes. The “Policy” mentioned below is the Conservative’s recent directive on face coverings.



Citizenship judges cannot exercise that function to determine what degree of freedom is possible if they instead obey the Policy’s directive to ensure that candidates for citizenship have been seen, face uncovered, taking the oath. How can a citizenship judge afford the greatest possible freedom in respect of the religious solemnization or solemn affirmation in taking the oath if the Policy requires candidates to violate or renounce a basic tenet of their religion?

For instance, how could a citizenship judge afford a monk who obeys strict rules of silence the “greatest possible freedom”in taking the oath if he is required to betray his discipline and break his silence? Likewise, how could a citizenship judge afford a mute person the“greatest possible freedom” in taking the oath if such person is physically incapable of saying the oath and thus cannot be seen to take it ?
As a citizenship judge cannot comply with both the Policy and paragraph 17(1)(b) of the Regulations, it is necessary to determine which prevails.

And we all know how that one went.

The issue of fact which the learned judge rested his opinion was that the face covering is a basic tenet of the Islamic religion, which it is not.

According to Mrs. Ishaq, all that you have to prove is that a) that your practice is  a religious tenet sincerely held, and that b) the rule complained of interferes with the practice in a manner that is neither trivial nor insubstantial. To which I would add, that you find a judge who agrees with your interpretation of your religion, which ought to be dead simple.

My objection to the form of reasoning which constitutes Canadian rights discourse is that the whole is a Procrustean bed. A properly constituted legal discourse would allow for the discussion of public mores in addition to the discussion of infringements of rights, and the standards to be applied in considering the legality of infringements of rights.

There is, in the cosmic scheme of things, very little at stake in someone’s fashion statement, naked or clothed head to foot, if it were a fashion statement. But it is not. Taking the oath says you are also going to abide by the mores of the society which you have joined. At least, that is what you and I and the Conservative government think.

The reasoning allowed by the Courts says this is an inadmissible form of discourse. It is as if half or more of the argument can never be made.

In the meantime we are enjoined by the official organ of the Court party, the Globe and Mail, to

The niqab is a distraction – a culture war fabricated to take voters’ minds off the real and complex issues in this election. Don’t fall for it. Wearing a veil is one thing – wearing a blindfold is another altogether.

I consider that it is the Court Party which is wearing the ideological blindfold. As Prime Minister Wife said this afternoon, the issue is whether you want your daughters to wear one. It is not about individual rights so much as total social direction.

Stay tuned, this election is about something more than oil and the value of the dollar, both of which are largely outside political jurisdiction, for something that is within the boundaries of politics: how we shall live as a society.