Ishaq v. Canada (Minister of Citizenship and Immigration), (2015) 476 N.R. 288 (FCA)

• Judge: Trudel, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 05, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 476 N.R. 288 (FCA);2015 FCA 212

Ishaq v. Can. (M.C.I.) (2015), 476 N.R. 288 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. OC.003

The Minister of Citizenship and Immigration (appellant) v. Zunera Ishaq (respondent) and Attorney General of Ontario (intervener)

(A-124-15; 2015 FCA 212; 2015 CAF 212)

Indexed As: Ishaq v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Trudel, J.A.

October 5, 2015.

Summary:

Ishaq was a Pakistani national who had been granted Canadian citizenship. Her religious beliefs required her to wear a niqab (a veil that covered most of her face). A 2011 change in government policy required her to remove the niqab during the oath of citizenship. Ishaq challenged the policy on a number of grounds, including freedom of religion and equality rights under the Charter.

The Federal Court, in a decision reported at (2015), 475 F.T.R. 94, allowed Ishaq's application, finding that, to the extent that the policy interfered with a citizenship judge's duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath, it was unlawful. The portions of the policy and manual that required citizenship candidates to remove face coverings or be observed taking the oath were unlawful. The Minister of Citizenship and Immigration appealed. A number of parties brought motions to intervene in the appeal.

The Federal Court of Appeal, per Stratas, J.A., in a decision reported at (2015), 474 N.R. 268, denied the motions.

The Federal Court of Appeal, in a decision reported at (2015), 475 N.R. 362, dismissed the appeal. The Minister filed a notice of application for leave to appeal to the Supreme Court of Canada and sought a stay of the Federal Court of Appeal and Federal Court judgments, pending the determination of the application or, if granted, of the appeal.

The Federal Court of Appeal, per Trudel, J.A., denied the motion for a stay.

Courts - Topic 4100.1

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Stay of proceedings - [See Practice - Topic 8954 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 8954 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes irreparable harm - Ishaq was a Pakistani national who had been granted Canadian citizenship - Her religious beliefs required her to wear a niqab (a veil that covered most of her face) - A 2011 change in government policy (incorporated into s. 6.5 of Citizenship and Immigration Canada's policy manual, CP15: Guide to Citizenship Ceremonies) required her to remove the niqab during the oath of citizenship - Boswell, J., found that, to the extent that the policy was a mandatory requirement that interfered with a citizenship judge's duty under s. 17(1)(b) of the Citizenship Regulations to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath, it was unlawful - The Minister's appeal was dismissed - The Minister applied for leave to appeal to the Supreme Court of Canada and sought a stay of the Federal Court of Appeal and Federal Court judgments, pending the determination of the application or, if granted, of the appeal - The Federal Court of Appeal, per Trudel, J.A., denied the motion for a stay - The motion failed on the issue of irreparable harm - Presuming that the Minister was correct in his argument that the policy was not mandatory (although that was conceded on the appeal) and citizenship judges could apply it or not, the court questioned how it was possible to raise a claim of irreparable harm - It was inconsistent to claim that a policy had no binding effect, but that irreparable harm would result if that policy was declared unlawful - Further, a declaration that the policy was unlawful left no void as the underlying laws and regulations and lawful policies were in force.

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 14].

Counsel:

Peter Southey, Negar Hashemi and Julie Waldman, for the appellant, the Minister of Citizenship and Immigration;

Lorne Waldman and Marlys A. Edwardh, for the respondent, Zunera Ishaq;

Courtney Harris and Rochelle S. Fox, for the intervener, the Attorney General of Ontario.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant, the Minister of Citizenship and Immigration;

Waldman and Associates, Toronto, Ontario, and Sack Goldblatt Mitchell LLP, Toronto, Ontario, for the respondent, Zunera Ishaq;

The Attorney General of Ontario, Constitutional Law Branch, Toronto, Ontario, for the intervener, the Attorney General of Ontario.

This motion was dealt with in writing without the appearance of the parties by Trudel, J.A., of the Federal Court of Appeal, who delivered the following reasons for order, at Ottawa, Ontario, in both official languages on October 5, 2015.