by Bob Chodos
The fuse on the niqab time bomb that exploded during the election campaign was first lit in December 2011. Jason Kenney, then Immigration Minister (and now the subject of much speculation as the likely successor to Harper), issued a ministerial directive requiring citiizenship judges to insist that people uncover their faces while taking the oath of Canadian citizenship. The directive would apply notably to Islamic face coverings such as the niqab.
An immigrant from Pakistan who wears the niqab, Zunera Ishaq, challenged Kenney’s directive in court. Judge Keith Boswell ruled in favour of Ishaq’s challenge in February 2015. While Ishaq’s challenge made an argument in terms of the Charter right to religious freedom, Boswell’s decision was based solely on a technical matter: inconsistency between the ministerial directive and a regulation under the Citizenship Act requiring citizenship judges to “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof.”1
The government immediately announced its intention to appeal the decision, and within weeks filed a notice with the Federal Court of Appeal. Meanwhile, the government continued to highlight its support for a ban on the niqab on its website. NDP leader Tom Mulcair and Liberal leader Justin Trudeau supported Judge Boswell’s decision.
The Court of Appeal upheld the lower court decision on September 15, in the middle of the federal election campaign. The court’s timing was deliberate, as it wanted to allow Ishaq to take the oath of citizenship in time to vote in the October 19 election – which she did. However, it also threw an unexpected and unpredictable element into the campaign, especially in Quebec. The Conservatives continued to press the issue – among other places in a French-language television ad that listed “acquiring citizenship with face uncovered” as one of the values of Quebecers that they had protected. It became associated with other policies carried out or advocated by the Conservative government, such as the priority given to security concerns in its cautious response to the Syrian refugee crisis, revoking the Canadian citizenship of people convicted of terrorism-related offences and a tip line for reporting “barbaric cultural practices.”
The niqab was the subject of a heated exchange in the September 24 French-language leaders’ debate, with Mulcair and Trudeau squaring off against Harper and Bloc Québécois Leader Gilles Duceppe. It generated much discussion in various corners of Canadian society, including the Inroads listserv, where a debate began in late September and continued into the postelection period (the Summer/Fall 2016 issue of Inroads will carry extensive coverage, based on the listserv debate, of the questions raised by the niqab discussion).
But did it affect the election outcome? It is hard to find evidence of a direct effect. In Quebec, despite polls showing overwhelming support for a ban on wearing the niqab while taking the oath of citizenship, the main shift of votes relative to the 2011 election was from one party that opposed such a ban, the NDP, to another with a similar position, the Liberals. The Liberal share of the vote increased from 14.2 to 35.7 per cent, while the NDP share dropped from 42.9 to 25.4 per cent. The Bloc Québécois, which supported a ban, also saw its share drop, from 23.4 to 19.3 per cent. There was thus a net 17 per cent shift to the Liberals from the NDP and a 4 per cent shift to the Liberals from the Bloc. The Conservatives’ share of the vote changed by only a fraction of a percentage point, from 16.5 to 16.7 per cent.
Both the Bloc and the Conservatives did gain seats in Quebec, with the Bloc rising from four seats to ten and the Conservatives from five to twelve. But those gains were the result not of an overall shift of votes but of geographical concentration and the vagaries of three- and four-way races. Except for Manicouagan, a sprawling constituency on the North Shore of the St. Lawrence River, all the Bloc seats are in a horseshoe to the north and east of Montreal, while the Conservative ridings form a belt stretching from Lac-Saint-Jean through Quebec City to Mégantic on the U.S. border. Eight of the ten Bloc seats, and six of the twelve Conservative ones, were won with less than 40 per cent of the vote.
Nor is there a niqab effect visible in the rest of Canada, where a ban is supported by an only slightly smaller majority than in Quebec. Outside Quebec, the Liberals doubled their share of the vote from 20 to 40 per cent, picking up 11 per cent from the Conservatives and 9 per cent from the NDP. Of course, both inside and outside Quebec, it’s possible that the niqab could have tipped some votes in some ridings. But its overall direct effect on the results was negligible.
A far more plausible case can be made for an indirect niqab effect. John Richards made this case on the Inroads listserv on October 10, when the polls had begun to shift dramatically in favour of the Liberals:
[Setting the ethical issues aside,] on the raw realpolitik I am confident that Mulcair’s suppport for the right to the niqab was stupid. It has cost the NDP dearly. It is perhaps the key tactical decision that has returned the party nationally to its traditional level of popular support in the low 20 per cent range. An NDP victory has always depended on maintaining the great majority of Quebec seats. According to today’s CBC prediction, the NDP will lose nearly a third of its present Quebec caucus on October 19.2
Admittedly, Trudeau has adopted an even more “principled” stand on behalf of wearing the niqab. But the Liberals do not much matter in Quebec and, outside Quebec, the offensive nature of politicized Islam is less prominent. (Here in B.C. “only” 72 per cent in the Léger poll oppose the wearing of the niqab.) If the NDP cannot hold its Quebec base, those opposed to Harper and willing to support either the NDP or Liberals are, quite sensibly, opting for Trudeau.
The NDP’s campaign manager, Anne McGrath, came to a similar conclusion. Two days after the election, she spoke at a luncheon sponsored by Maclean’s magazine:
A lot of the progressive Canadians that were looking to us felt that the base level of support in Quebec was an important factor in supporting us, because they were looking for the best vehicle to replace Stephen Harper, so we did see an immediate drop in support. What was surprising was that drop in support in the early days didn’t go to any one particular place; it kind of went to a few different places, some to the Bloc, some to the Liberals. It didn’t kind of attach on to any particular place, partly because our positions were identical with the Liberals.
I do think that a lot of Quebec voters, when the niqab [appeal decision] happened, took a second look and, so they weren’t necessarily, in my view anyway, voting or expressing support on that particular issue, but it sort of shook them loose from where they had been. Then I think that they went out and looked around, and so I don’t think it was necessarily on that issue, but I think that’s what shook them loose from NDP support at the very beginning.3
In any case, while Islamic garb clearly generates considerable unease among large numbers of Canadians, opposition to it has not yet proved a winning election strategy. On October 19, Stephen Harper joined former Quebec Premier Pauline Marois4 in the ranks of those who found that out the hard way.
1 Citizenship Regulations, SOR/93-246, s.7(1)(b), retrieved from http://laws-lois.justice.gc.ca/eng/regulations/SOR-93-246/FullText.html
2 In the event, the NDP declined from 59 Quebec seats to 16, and thus lost three quarters of its Quebec caucus.
3 Tim Naumetz, “Liberal Plan Was Always to Get Majority Government, Says Party’s Comms Director,” Hill Times, October 21, 2015, retrieved from http://www.hilltimes.com/news/2015/10/21/liberal-plan-was-always-to-get-majority-government-says-partys-comms-director/43843
4 See Inroads, Summer/Fall 2014, pp. 74–110.
Bob Chodos is managing editor of Inroads.