Ishaq v. Canada (Minister of Citizenship and Immigration), (2015) 475 N.R. 362 (FCA)

• Judge: Trudel, Webb and Gleason, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 15, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 N.R. 362 (FCA);2015 FCA 194

Ishaq v. Can. (M.C.I.) (2015), 475 N.R. 362 (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. SE.005

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

(A-124-15; 2015 FCA 194; 2015 CAF 194)

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

Federal Court of Appeal

Trudel, Webb and Gleason, JJ.A.

September 15, 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 dismissed the appeal.

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 2011 change in government policy required her to remove the niqab during the oath of citizenship - The policy change was incorporated into s. 6.5 of Citizenship and Immigration Canada's policy manual, CP15: Guide to Citizenship Ceremonies - Ishaq challenged the policy - Boswell, J., 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 - The requirement in the policy was a mandatory duty that was contrary to s. 17(1)(b) - The Federal Court of Appeal dismissed the Crown's appeal, stating, "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.... [W]e 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."

Aliens - Topic 2528

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

Statutes - Topic 5302

Operation and effect - Delegated legislation - General and definitions - Authority to enact - [See Aliens - Topic 2510 ].

Statutes - Topic 5375

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

Counsel:

Peter Southey, Negar Hashemi and Julie Waldman, for the appellant;

Lorne Waldman and Naseem Mithoowani, co-counsel for the respondent;

Marlys Edwardh and Daniel Sheppard, co-counsel for the respondent;

Courtney Harris and Hayley Pitcher, for the intervener.

Solicitors of Record:

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

Waldman & Associates, Toronto, Ontario, co-counsel for the respondent;

Sack Goldblatt Mitchell LLP, Toronto, Ontario, co-counsel for the respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervener.

This appeal was heard at Ottawa, Ontario, on September 15, 2015, by Trudel, Webb and Gleason, JJ.A., of the Federal Court of Appeal. On the same date, Gleason, J.A., delivered the following judgment from the bench for the court.