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Canada: Government Drops Appeal to Supreme Court over Niqab Ban During Citizenship Ceremonies

(Nov. 27, 2015) On November 16, 2015, John McCallum, the Minister of Immigration, Refugees and Citizenship, and Jody Wilson-Raybould, the Minister of Justice and Attorney General of Canada, issued a joint statement stating that the recently elected Liberal government would discontinue a request for appeal of a recent ruling of the Federal Court of Canada (which was also upheld by the Federal Court of Appeal) holding that a policy requiring women to unveil during the oath of citizenship ceremony was “unlawful on administrative law grounds.” (Government of Canada, Statement from the Minister of Immigration, Refugees and Citizenship and the Minister of Justice (Nov. 16, 2015).)

The policy requirement for women to remove their face veils when taking the oath of citizenship was first included in Citizenship and Immigration Canada (CIC)’s Operational Bulletin number 359, on December 12, 2011 (Kady O’Malley, SourceDocWatch: CIC Operational Bulletin on “Full and Partial Face Coverings” at Citizenship Ceremonies, CBC NEWS (Dec. 12, 2011)), and then was incorporated in CIC’s policy manual. (Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156 (Feb. 6, 2015), ¶ 4.) The legal dispute arose when a Pakistani national, Zunera Ishaq, objected to the requirement on the ground that it interfered with her freedom of religion. (John Mastrangelo, Face-Coverings and the Canadian Citizenship Oath: The Federal Court of Appeal Decides ‘Ishaq v Canada, THE COURT (Sept. 21, 2015).)

While the government argued that the policy was merely a guideline, the Federal Court disagreed and held that the policy was mandatory in nature and that it 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 …” as enshrined in a provision of the Citizenship Regulations. (Ishaq v. Canada (Citizenship and Immigration), ¶ 68); Citizenship Regulations, SOR/93-246, ¶ 17(1)(b) (May 11, 1993, as amended), Government of Canada website.) The Court found that because the subsidiary policy was in conflict with the enabling regulation, it was invalid. (Ishaq v. Canada (Citizenship and Immigration), ¶¶ 55 & 57.) Since the decision could be made on non-constitutional grounds, the Court declined to decide the case on issues arising from the Canadian Charter of Rights and Freedoms. (Id. ¶ 67.)

On September 15, 2015, the Federal Court of Appeal, though it did not endorse all the findings of the Federal Court, dismissed the appeal on the grounds that there was “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.” (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194,¶ 4 (Sept. 15, 2015).) On October 5, the Federal Court of Appeal also rejected a motion to stay the previous decisions until the Supreme Court has decided on the matter. (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 212 (Oct. 5, 2015).)

The previous, Conservative government had asked the Supreme Court to hear an appeal of the lower court rulings, but the recently elected Liberal Party government followed through with a campaign promise to drop the appeal. (Liberals Drop Controversial Supreme Court of Canada Niqab Appeal, THE STAR (Nov. 16 2015).)