The niqab can stay – Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194

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On September 15, 2015, the Federal Court of Appeal issued a short ruling from the bench in the appeal of Zunera Ishaq’s case respecting the Department of Citizenship and Immigration’s policy that requires women who wear a niqab to unveil in order to take the oath of citizenship. In Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194, Madam Justice Mary Gleason rendered a short six paragraph oral set of reasons, issued in this manner so that Ms. Ishaq might still be able to take the oath of citizenship and vote in the upcoming election.

In February this year, Mr. Justice Boswell had decided the case in first instance. In far more detailed reasons, he found the policy to be incompatible with s. 17(1)(b) of the Regulations enacted under the Citizenship Act, which provision stipulates as follows:

17. (1) The ceremonial procedures to be followed by citizenship judges shall be appropriate to impress on new citizens the responsibilities and privileges of citizenship and, without limiting the generality of the foregoing, a citizenship judge shall, during a ceremony held for the presentation of certificates of citizenship,

(b) subject to subsection 22(1), administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof;

Justice Boswell found that a citizenship judge could not comply both with s. 17(1)(b) and the Department’s policy. The Regulation has “higher legal status” than the policy [para. 55] and therefore, its provisions trumped those of the policy to the extent there were inconsistencies.

Although arguments were made before him respecting s. 2(a) [freedom of religion] and s. 15 [equality], having found the policy to be invalid in the face of the Regulation, he thought the more prudent course was not to rule on those constitutional arguments:

[66] In circumstances where a constitutional case can be decided on a non-constitutional ground, Peter Hogg has advised that “[t]he course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided” (Peter W Hogg, Constitutional Law of Canada, 5th ed, vol 2 (Toronto: Thomson Reuters, 2007) (loose-leaf update to 2014), ch 59 at 59.5 [Hogg]). The Supreme Court has also cautioned that “unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen” (Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 SCR 97 at paragraph 9, 124 DLR (4th) 129).

[67] Although there may be cases where it is appropriate to decide the constitutional issues raised by a case (Law Society of Upper Canada v Skapinker, 1984 CanLII 3 (SCC), [1984] 1 SCR 357 at 383-384, 9 DLR (4th) 161; Hogg, vol 2, ch 59 at 59.5), this case is not among them. While the evidentiary record was adequate to decide the matter, it was not voluminous and the hearing itself was relatively brief. Thus, judicial economy is not a major consideration, and there is no compelling need for certainty since the Policy will be set aside regardless of its constitutionality. Therefore, it would be imprudent to decide the Charter issues that arose in this application and I decline to do so.

Madam Justice Gleason agreed with the general direction of Justice Boswell’s decision. She and her panel members wanted to provide to Ms. Ishaq the possibility of taking the oath promptly and being able to vote in the upcoming federal election so she rendered her reasons orally. The entirety of her reasons is as follows:

[1] In the judgment under appeal, the Federal Court declared that the change in policy applicable to women who wear the niqab, that requires them to unveil to take the oath of citizenship, was unlawful. This policy change first came into effect on December 12, 2011 and was initially enshrined in Citizenship and Immigration Canada’s [CIC’s] Operational Bulletin 359. The policy change was shortly thereafter incorporated into section 6.5 of CIC’s policy manual, CP 15:Guide to Citizenship Ceremonies.

[2] One of the reasons given by the Federal Court for its judgment was the determination that this policy change was mandatory. The Federal Court also found that the policy change conflicted with the requirements of the Citizenship Act, R.S.C. 1985, c. C-29 and with the regulations made under that Act.

[3] The appellant has conceded that if we do not interfere with the Federal Court’s finding as to the mandatory nature of the policy change, this appeal must be dismissed in part because paragraph 27(1)(h) of the Citizenship Act delegates authority to make regulations regarding the taking of the oath of citizenship to the Governor in Council and this policy change was not adopted by the Governor in Council.

[4] While we do not necessarily agree with all the reasons given by the Federal Court, we see no basis to interfere with the Federal Court’s finding as to the mandatory nature of the impugned change in policy as this finding is overwhelmingly supported by the evidence. It follows that this appeal must be dismissed.

[5] We decline to address the issues concerning the legality of the impugned policy change under the Canadian Charter of Rights and Freedoms as a determination on this point is unnecessary for the disposition of this case and the record before us is fairly scant as concerns the Charter challenge. Moreover, we believe that it is in the interests of justice that we not delay in issuing our decision through the examination of an unnecessary issue so as to hopefully leave open the possibility for the respondent to obtain citizenship in time to vote in the upcoming federal election.

[6] As a result, the appeal will be dismissed with costs.

The federal government has announced that it plans on appealing this decision. Whether the appeal will have any effect on Ms. Ishaq’s ability to vote in this election or not is not known.

Thus, while this case has no doubt numerous constitutional principles at play, none of them have been utilized in the judicial analyses to date. One matter that is of interest was the willingness of both levels of court to sidestep the Charter arguments. Whether the Supreme Court of Canada grants leave or whether it will bite into the constitutional fruit remain to be seen.

I remain

Constitutionally yours,

Arthur Grant

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