Documents reveal government’s scramble to enact niqab requirements: Risks clearly flagged

Sounds all too familiar from my time in government and working on citizenship and multiculturalism files as detailed in my book, Policy Arrogance or Innocent Bias: Resetting Citizenship and Multiculturalism. The official cited was part of my team and I think he read the situation clearly: once the Department had provided appropriate legal and policy advice, and the Ministerial direction was clear, further signal checks would simply aggravate relations without changing the views of the Minister.

The question remains is whether these concerns remained at the Director/Director General level (unlikely) and the degree to which the risks were raised during regular Ministerial briefings or by the Deputy Minister (and whether the opportunity to flag again the legal risk was acted upon):

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 minorities, 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.

Source: Documents reveal government’s scramble to enact niqab requirements – The Globe and Mail

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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