Four years ago, as opposition to the wearing of the Muslim niqab built in Quebec, France and the Netherlands, citizenship and immigration minister Jason Kenney was approached by Conservative MP Wladyslaw Lizon. Mr. Lizon told him that he was shocked to see four women with their faces veiled taking the oath of citizenship at a ceremony in Mississauga. Mr. Kenney promptly instructed officials to create a requirement for uncovered faces when new Canadians take the oath.

His departmental staff either didn’t grasp or weren’t happy with what he was asking at first, internal government e-mails and memoranda show – producing ideas for accommodation instead. And even after they understood the request for a mandatory policy of uncovered faces, and rushed to give it to him, they were so concerned the courts would block Mr. Kenney’s new policy that they warned him of the legal risks, and pondered warning him again.

The e-mails and memos form part of the public court record in Zunera Ishaq’s successful challenge to the government policy on niqabs worn during citizenship oaths. The government is now asking the Supreme Court to hear a last-ditch appeal before next month’s election. Ms. Ishaq needs her citizenship to be able to vote.

The internal documents are a window onto policy development by a government whose major initiatives have repeatedly been struck down or watered down by the courts. Benjamin Perrin, a former legal adviser to Prime Minister Stephen Harper, wrote a study last year that found the government “lost and lost big” at the Supreme Court, and questioned whether the problem was in poor legal advice or in a failure to heed advice.

The documents show that Mr. Kenney’s office asked departmental officials in the late summer of 2011 for “advice on … rules requiring that when people take the oath, their face must be uncovered.”

Senior staff in the Department of Citizenship and Immigration sent a memo to Mr. Kenney headed, all in capital letters, “OPTIONS TO ACCOMMODATE PERSONS WITH RELIGIOUS/CULTURAL GARMENTS WHILE TAKING OATH.” The federal government, in disputes over religious freedom, normally opts for accommodating minorites, they said.

“While there has (sic) been mixed approaches to dealing with religious accommodation in Canada and … abroad, in general, the federal-level response to recent high-profile incidents has been to accommodate religious beliefs when no security reasons exist (see Annex B),” officials told the minister.

Before changes are made, it said, the department needs to consider “the impact on the clients’ rights and beliefs, operational factors and how the requirements of the Citizenship Act and Regulations can be met.” The Citizenship Act contains regulations that individual religious beliefs are to be accorded “the greatest possible freedom.” The act also says changes involving the oath or the duties of a citizenship judge need to be approved by cabinet.

Within weeks, the tone changed. Mr. Kenney had gotten his message across: Niqab-wearers would need to unveil publicly. Mondher BenHassine, the director of policy and knowledge development in the department’s citizenship and multiculturalism branch, told other officials in a memo on Nov. 8 that there was no need to go back to Mr. Kenney for a “signal check.”

“In looking over the hand written comments from the Minister, it is pretty clear that he would like changes to the procedure to ‘require’ citizenship candidates to show their face and that these changes be made as soon as possible. Therefore, I don’t think it would serve us well to go back up for a signal check, it would likely only be seen as foot dragging by bureaucrats. My interpretation is that the Minister would like this done, regardless of whether there is a legislative base and that he will use his prerogative to make policy change.”

Mr. BenHassine went on to ask whether officials would be able to repeat an earlier warning to the minister’s office, dubbed MINO. “Is there the opportunity to flag the legal risk to MINO (it would be good to re-iterate, but not sure if this will make a difference).”

The documents do not make clear what the answer was. Several pages have been redacted from the court record, on the grounds of solicitor-client privilege.

But the documents spell out repeatedly that the policy is “mandatory” or “required.” The word is used in briefing notes to the minister for Question Period, and for officials taking media calls. And the policy itself says that citizenship “candidates are required to remove their face coverings for the oath taking portion of the ceremony.” Mr. Kenney called the wearing of a face-veil while taking the oath “ridiculous” in a CBC interview.

Yet the government’s argument in court rests on the notion that the policy is not mandatory but at the discretion of citizenship court judges. The government acknowledged in court that a mandatory policy would be unlawful because it did not have cabinet approval.

All four judges who have heard that argument rejected it out of hand, based on the evidence in the documents. Ms. Ishaq, who is represented by Toronto lawyer Lorne Waldman, won at the Federal Court last February – the trial judge wondered what would happen if a silent monk wished to become a Canadian, or a mute person – and three judges of the Federal Court of Appeal dismissed it in a few paragraphs last week. All four judges were appointed by the Conservative government.

The Globe and Mail
Published Wednesday, Sep. 23, 2015 6:00AM EDT
Last updated Wednesday, Sep. 23, 2015 7:03AM EDT