Federal government appealing Federal Court decision on niqabs, citizenship

OTTAWA – Ottawa never meant to make it mandatory for women to remove their face coverings for citizenship ceremonies, a government lawyer told court Tuesday — a position that left both the judge and defence lawyers scratching their heads.

The controversial edict was a regulation that had no actual force in law, Justice Department lawyer Peter Southey told a Federal Court of Appeal hearing Monday.

"It indicates a desire in the strongest possible language," Southey said — an argument that appeared to come as a surprise to Justice Johanne Trudel.

"I cannot see how this is not mandatory," Trudel said during the hearing.

Lorne Waldman, the lawyer for the woman at the centre of the case, also dismissed Southey's argument, saying everyone from former immigration minister Jason Kenney , his successor Chris Alexander and even Prime Minister Stephen Harper have said in public they see it as a mandatory policy.

Reading from internal government emails, Waldman told court there was not "one iota of discretion" within the policy.

"Everything says mandatory, no discretion — that's the facts of the case."

The controversial case focuses on whether a Muslim woman should be required to remove her face covering to take the oath of citizenship.

At its heart is Znuera Ishaq, a 29-year-old woman with devout Muslim beliefs who came to Ontario from Pakistan in 2008, but refused to take part in a citizenship ceremony because she would have to show her face.

Outside court, Ishaq questioned the federal government's new line.

"If it's not mandatory I would simply say, why they are fighting for it? Just let me go," she said.

"I can't even make sense of the statement — what the lawyer said about it that it's not mandatory. If it's not mandatory, so why that all this fuss is for?"

The government is appealing an earlier Federal Court decision that found the policy on face coverings unlawful.

Southey argued the government's appeal of that ruling, telling three Appeal Court justices that Federal Court Judge Keith Boswell made three errors in law.

The case has sparked bitter political debate in the House of Commons between the federal parties.