As we have observed before, the Canadian courts stand in a rather similar relationship to the Canadian Charter of Rights and Freedoms as the UK courts to the ECHR – except that the Charter is binding, whereas the UK courts merely have to ‘take account of’ the Convention. Religious dress and rights under the Charter came up in Ishaq v Canada (Citizenship and Immigration) 2015 FC 156 (CanLII), handed down by the first-instance Federal Court on 6 February.
Ms Ishaq is a Pakistani national and devout Sunni Muslim who believes that her religion requires her to wear a niqab veil in public. She told the Court that she would unveil herself to a stranger only if absolutely necessary in order to prove her identity or for purposes of security and, even then, she would do so only privately in front of other women.
Ms Ishaq became a permanent resident of Canada in 2008 and her application for citizenship was approved by a citizenship judge in 2013. She was duly granted citizenship, pursuant to subsection 5(1) of the Citizenship Act 1985; but she would not be considered a citizen under paragraph 3(1)(c) of the Act until she took the oath of citizenship – and to do so she would be obliged to unveil during the proceedings.
She argued that the rule on unveiling was contrary to paragraph 2(a) (freedom of conscience and religion) and section 15(1) (equality before and under law and equal protection and benefit of law) of the Charter and that the administrative policy on unveiling at citizenship ceremonies was inconsistent with the governing legislation and therefore ultra vires.
Boswell J agreed with her: he allowed her application for judicial review, declared that the requirement for citizenship candidates to remove face coverings or be observed taking the oath was unlawful and awarded her costs.
Immediate political reaction has been entirely predictable. Conservative Prime Minister Stephen Harper, speaking in Quebec a few days after the court made its ruling public, said that his Government would appeal the decision. Religion News Service quoted him as follows:
“I believe, and I think most Canadians believe, that it is offensive that someone would hide their identity at the very moment where they are committing to join the Canadian family. This is a society that is transparent, open, and where people are equal.”
Which is no great surprise, particularly given that this is an election year in Canada and that, in any case, the Conservative Party has reservations about some aspects of the Charter. But the case itself makes an interesting contrast with Mann Singh v France  ECHR 1523 [see our note here] and especially with SAS v France  ECHR 695 [noted here].
What will happen on appeal is anyone’s guess; but for the moment it would appear that the Canadian courts are more willing to protect individuals’ religious rights under the Charter than the ECtHR to protect individuals’ religious rights under Article 9.