Ishaq v. Canada (Minister of Citizenship and Immigration), (2015) 475 F.T.R. 94 (FC)

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: October 16, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 F.T.R. 94 (FC);2015 FC 156

Ishaq v. Can. (M.C.I.) (2015), 475 F.T.R. 94 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.057

Zunera Ishaq (applicant) v. The Minister of Citizenship and Immigration (respondent)

(T-75-14; 2015 FC 156)

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

Federal Court

Boswell, J.

February 6, 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 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 allowed the 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.

Editor's Note: For a decision denying a number of motions to intervene in the appeal of this decision, see (2015), 474 N.R. 268.

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - 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 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 Minister of Citizenship and Immigration asserted that the judicial review application was premature as Ishaq had not attended the citizenship ceremony and refused to uncover her face - The Federal Court rejected the argument - A direct challenge to the policy was appropriate - Policies were published so that people could know them and organize their affairs accordingly - Further, there were internal limits to a typical judicial review application that could interfere with the court's ability to determine the constitutional issues - The application was not premature - See paragraphs 41 to 43.

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - [See Aliens - Topic 2510 ].

Aliens - Topic 2510

Naturalization - General - Duties of Citizenship Judge (incl. duty to give reasons) - 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 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 allowed the application, finding that, to the extent that the policy 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 requirement in the policy was not merely an interpretive guideline - It was mandatory and tantamount to a law made under the Minister's statutory authority to assign duties to citizenship judges - The mandatory duty was contrary to s. 17(1)(b) - A citizenship judge could not comply with both - As regulations, which were enacted by the Governor-in-Council, had a higher status than guidelines and policies, the Citizenship Regulations prevailed - A mandatory guideline could not trump the Citizenship Act or its Regulations - The portions of the policy and manual that required citizenship candidates to remove face coverings or be observed taking the oath were unlawful - See paragraphs 44 to 57.

Aliens - Topic 2528

Naturalization - Qualifications - Oath of citizenship - [See Aliens - Topic 2510 ].

Aliens - Topic 2528

Naturalization - Qualifications - Oath of citizenship - 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 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, having found that, to the extent that the policy 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, also indicated that the requirement imposed by the policy that a citizenship candidate be seen taking the oath appeared to be superfluous - Section 24 of the Citizenship Act only required the candidate's signature on the citizenship form to prove that a candidate had sworn or affirmed the oath of citizenship - Visual confirmation of the candidate saying the oath was not required - See paragraphs 58 to 62.

Aliens - Topic 2528

Naturalization - Qualifications - Oath of citizenship - 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 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 - She also relied on ss. 3(2)(c) and 3(2)(f) of the Canadian Multiculturalism Act (CMA), which pertained to the promotion of multiculturalism - The Federal Court, having allowed Ishaq's application on other grounds, rejected this argument - The CMA could not be interpreted so broadly that any government policy was invalidated if it in any way might derogate from s. 3(2)'s objectives - See paragraphs 63 to 65.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Administrative Law - Topic 3348 ].

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - 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 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, having found that, to the extent that the policy 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, declined to consider the Charter issues, stating, "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." - See paragraphs 66 and 67.

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - [See Constitutional Law - Topic 9954 ].

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties of constitutional question (incl. attack on validity or applicability of statute) - 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 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 - At issue was whether Ishaq's notice of constitutional question under s. 57 of the Federal Courts Act was invalid as it had been given one day late - The Federal Court extended the time for service of the notice to the day it was served - All of the Attorneys General had filed written consents to the late service - As the constitutional challenge was to a ministerial policy rather than to a statute or regulation, it was uncertain whether notice was required - However, it was unnecessary to decide that point - An extension was in the interests of justice - See paragraphs 10 to 19.

Courts - Topic 4072

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Limitation periods - Extension of - [See Constitutional Law - Topic 9954 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See third Aliens - Topic 2528 ].

Statutes - Topic 5375

Operation and effect - Delegated legislation - Regulations - Operation - Implementation of policy - [See Aliens - Topic 2510 ].

Cases Noticed:

Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to. [para. 12].

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2004] 2 F.C.R. 108; 315 N.R. 76; 2003 FCA 473, refd to. [para. 12].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161; 124 D.L.R.(4th) 385, refd to. [para. 12].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2004] 3 F.C.R. 436; 317 N.R. 258; 2004 FCA 66, revd. in part [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 12].

Thompson v. Minister of National Revenue (2013), 448 N.R. 339; 2013 FCA 197, refd to. [para. 12].

Enabulele v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2009), 347 F.T.R. 309; 2009 FC 641, refd to. [para. 13].

Husband v. Canadian Wheat Board (2006), 304 F.T.R. 55; 2006 FC 1390, affd. [2007] N.R. Uned. 135; 2007 FCA 325, refd to. [para. 13].

Larkman v. Canada (Attorney General) (2012), 433 N.R. 184; 2012 FCA 204, refd to. [para. 15].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), [2012] 2 S.C.R. 524; 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 20].

Moresby Explorers Ltd. et al. v. Canada (Attorney General) et al. (2006), 350 N.R. 101; 2006 FCA 144, refd to. [para. 20].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 21].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 21].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321, refd to. [para. 22].

McAteer et al. v. Canada (Attorney General), [2013] O.T.C. Uned. 5895; 2013 ONSC 5895, varied (2014), 324 O.A.C. 163; 121 O.R.(3d) 1; 2014 ONCA 578, refd to. [para. 23].

Zylberberg et al. v. Board of Education of Sudbury et al. (1988), 29 O.A.C. 23; 65 O.R.(2d) 641; 52 D.L.R.(4th) 577 (C.A.), refd to. [para. 23].

R. v. N.S. et al. (2010), 269 O.A.C. 306; 102 O.R.(3d) 161; 2010 ONCA 670, affd. [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 24].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 27].

Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 385; 366 N.R. 301; 2007 FCA 198, refd to. [para. 28].

Pourkazemi v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 62 (T.D.), refd to. [para. 29].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 30].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 34].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks.

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 35].

May v. CBC/Radio Canada et al. (2011), 420 N.R. 23; 2011 FCA 130, refd to. [para. 41].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 42].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 43].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 55].

Lalonde v. Sun Life du Canada, Compagnie d'assurance-vie, [1992] 3 S.C.R. 261; 143 N.R. 287; 51 Q.A.C. 241, refd to. [para. 56].

National Bank Life Insurance Co. v. Minister of National Revenue (2006), 381 N.R. 117; 2006 FCA 161, refd to. [para. 56].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129, refd to. [para. 66].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161, refd to. [para. 67].

Statutes Noticed:

Canadian Multiculturalism Act, R.S.C. 1985, c. 24 (4th Supp.), sect. 3(2)(c), sect. 3(2)(f) [para. 63].

Citizenship Act Regulations (Can.), Citizenship Regulations, SOR/93-246, sect. 17(1)(b) [Appendix B].

Citizenship Regulations - see Citizenship Act Regulations (Can.).

Counsel:

Lorne Waldman, for the applicant;

Negar Hashemi, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on October 16, 2014, by Boswell, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on February 6, 2015.