Ishaq v. Canada (Citizenship and Immigration)

Ishaq v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-02-06
Neutral citation
2015 FC 156
File numbers
T-75-14
Notes
Reported Decision
Decision Content
Date: 20150206
Docket: T-75-14
Citation: 2015 FC 156
Ottawa, Ontario, February 6, 2015
PRESENT: The Honourable Mr. Justice Boswell
BETWEEN:
ZUNERA ISHAQ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter and Background [1] Ms. Zunera Ishaq [Applicant] is a Pakistani national and a devout Sunni Muslim who voluntarily follows the Hanafi school of thought. When she is in public, the Applicant says that her religious beliefs obligate her to wear a niqab, a veil that covers most of her face. She also says that she will unveil herself to a stranger only if it is absolutely necessary to prove her identity or for purposes of security, and even then only privately in front of other women. She now comes to this Court to challenge a government policy that she claims will deny citizenship to her unless she betrays that conviction.
[2] The Applicant became a permanent resident of Canada on October 25, 2008 and her application for citizenship was approved by a citizenship judge on December 30, 2013. She was granted citizenship three days later pursuant to subsection 5(1) of the Citizenship Act, RSC 1985, c C-29 [Act]. However, she is not considered a citizen under paragraph 3(1)(c) of the Act until she takes the oath of citizenship, the words of which are set out in the schedule to the Act:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
The Applicant agrees with the content of the oath. She objects, however, to the manner by which she is being compelled to take it.
[3] Subsection 19(2) of the Citizenship Regulations, SOR/93-246 [the Regulations] provides that, “[u]nless the Minister otherwise directs, the oath of citizenship shall be taken at a citizenship ceremony.” The Applicant was scheduled for such a ceremony on January 14, 2014, at the office of Citizenship and Immigration Canada [CIC] in Scarborough, Ontario. Prior to this ceremony, the Applicant had taken her citizenship test on November 22, 2013, whereat she had removed her niqab for purposes of identification in accordance with section 13.2 of CIC’s policy manual, CP 15: Guide to Citizenship Ceremonies (as amended to 21 December 2011) [the Manual]. This section stipulates as follows:
13.2. Full or partial face coverings
Candidates for citizenship wearing a full or partial face covering must be identified. When dealing with these female candidates it is the responsibility of a citizenship official to confirm the candidate’s identity. This should be done in private, by a female citizenship official. The candidate must be asked to reveal her face to allow the CIC official to confirm the identity against the documents on file.
The candidates must be advised at this time that, they will need to remove their face covering during the taking of the oath. Failure to do so will result in the candidates not receiving their Canadian citizenship on that day.
The Applicant had no objection to this requirement and she unveiled herself so that the official could confirm her identity before taking the citizenship test.
[4] The Applicant is worried, however, that she will be forced to unveil in public at the citizenship ceremony she is required to attend. She became concerned about that following publicity surrounding CIC’s introduction of Operational Bulletin 359 [the Bulletin] on December 12, 2011, the contents of which were shortly thereafter incorporated into section 6.5 of the Manual. This section 6.5 is set out in Annex A to this decision.
[5] In summary, section 6.5 of the Manual [the Policy] provides that citizenship “[c]andidates wearing face coverings are required to remove their face coverings for the oath taking portion of the ceremony.” If they do not, they will not receive their citizenship certificates and will have to attend a different ceremony. If they again do not comply, then their application for citizenship will be ended.
[6] The Applicant objects to the requirement to remove her niqab at the citizenship ceremony. Since the ceremony is public and removing her veil is unnecessary for the purposes of identity or security, she says the following:
My religious beliefs would compel me to refuse to take off my veil in the context of a citizenship oath ceremony, and I firmly believe that based on existing policies, I would therefore be denied Canadian citizenship. I feel that the governmental policy regarding veils at citizenship oath ceremonies is a personal attack on me, my identity as a Muslim woman and my religious beliefs.
[7] By a letter dated January 8, 2014, the Applicant initially requested that her citizenship ceremony be rescheduled. The next day she filed the present application for judicial review in this Court, and the day after that she moved for an order enjoining the Respondent from applying the Policy at her citizenship ceremony scheduled for January 14, 2014.
[8] In response to such motion, the Respondent agreed to postpone the citizenship ceremony for the Applicant and subsequently offered to seat the Applicant in either the front or back row and next to a woman at the ceremony, so that other participants could not easily see her face if she removes her veil. The Applicant refused this arrangement since the citizenship judge and officers could still be male, and there could potentially be photographers.
[9] The Applicant’s application pursuant to subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7, identified the original Bulletin as the problematic document, but she essentially seeks the following relief:
1. a declaration that the Policy infringes paragraph 2(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter];
2. a declaration that the Policy infringes section 15(1) of the Charter;
3. a declaration that the Policy is inconsistent with the governing legislation and is therefore beyond the powers of the Respondent;
4. a declaration that the Policy unduly fetters the discretion of citizenship judges;
5. an order enjoining the Respondent and any officials of the Respondent from refusing citizenship to the Applicant on the basis of the Bulletin; and
6. her costs.
II. Is the Notice of Constitutional Question valid? [10] At the outset of the hearing in respect of this matter, it was determined that proper notice of the constitutional questions raised by the Applicant had not been given within the required timeline due to an inadvertent administrative error.
[11] The relevant portions of section 57 of the Federal Courts Act provide as follows:
57. (1) If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
57. (1) Les lois fédérales ou provinciales ou leurs textes d’application, dont la validité, l’applicabilité ou l’effet, sur le plan constitutionnel, est en cause devant la Cour d’appel fédérale ou la Cour fédérale ou un office fédéral, sauf s’il s’agit d’un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n’aient été avisés conformément au paragraphe (2).
(2) The notice must be served at least 10 days before the day on which the constitutional question is to be argued, unless the Federal Court of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, orders otherwise.
(2) L’avis est, sauf ordonnance contraire de la Cour d’appel fédérale ou de la Cour fédérale ou de l’office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l’objet doit être débattue.
[12] Non-compliance with section 57 can deprive the Court of jurisdiction to hear a constitutional question (see: Bekker v Canada, 2004 FCA 186 at paragraphs 8-9, 323 NR 195 [Bekker]; Ardoch Algonquin First Nation v Canada (Attorney General), 2003 FCA 473, [2004] 2 FCR 108 at paragraph 50; Eaton v Brant County Board of Education (1996), [1997] 1 SCR 241 at paragraph 54, 142 DLR (4th) 385). Whether a section 57 notice is even required, however, depends on the nature of the remedy being sought in a particular case: Canada (Minister of Canadian Heritage) v Mikisew Cree First Nation, 2004 FCA 66 at paragraphs 75-78, [2004] 3 FCR 436, Sharlow JA, dissenting, but not on this point, rev’d on other grounds 2005 SCC 69, [2005] 3 SCR 388; Thompson v Canada (National Revenue), 2013 FCA 197 at paragraph 67, 366 DLR (4th) 169.
[13] In that regard, there is some authority to suggest that notice under section 57 does not need to be given when the constitutional challenge is to a ministerial policy and does not allege the invalidity, inapplicability, or inoperability of a statute or regulation per se (see: e.g. Enabulele v Canada (Public Safety and Emergency Preparedness), 2009 FC 641 at paragraphs 12-14, 347 FTR 309). However, there is also authority to the opposite effect. For example, in Husband v Canada (Canadian Wheat Board), 2006 FC 1390 at paragraph 12, 304 FTR 55, aff’d 2007 FCA 325, Mr. Justice Strayer said that:
Section 57 of the Federal Courts Act, R.S., 1985, c. F-7, requires that notice be given to the Attorney General of Canada and the Attorney General of each province before this Court can judge an Act or regulation to be constitutionally invalid, inapplicable or inoperable. No such notice was given in this case to the provincial Attorneys General. The Applicant insists that he is not attacking the "constitutional validity, applicability or operability" of any Act of Parliament or regulation. But he is attacking, he says, the policy of the CWB. I accept that to the extent that he is arguing that such policy is not authorized by the Act or the regulations he is not raising a constitutional issue. But when he argues that such policy is contrary to the Charter, in my view he is arguing that the Act cannot be applied in this way consistently with the constitution. To my mind that is an issue of "constitutional operability" and cannot be addressed without proper notice under section 57. See Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at paras. 90-92.)
[14] For the purposes of this case, it is unnecessary to resolve the conflicting cases noted above. By virtue of subsection 57(2), the Court may excuse late service of the notice in this case by extending the time for service and, thereby, decide that proper notice was given irrespective of whether notice was or was not required.
[15] The test for granting extensions of time generally has been set out in Canada (Attorney General) v Larkman, 2012 FCA 204 at paragraph 61, 433 NR 184 [Larkman]:
(1) Did the moving party have a continuing intention to pursue the application?
(2) Is there some potential merit to the application?
(3) Has the Crown been prejudiced from the delay?
(4) Does the moving party have a reasonable explanation for the delay?
Not all of these factors are always relevant nor do they all need to favour the moving party, and the “overriding consideration is that the interests of justice be served” (Larkman at paragraph 62). The same test should be applied here for purposes of subsection 57(2).
[16] In this case, the hearing was held on October 16, 2014, and according to the meaning of “at least” in subsection 27(1) of the Interpretation Act, RSC 1985, c I-21, the time for service of the notice of constitutional question thus expired on Sunday, October 5, 2014. As every Sunday is a holiday pursuant to subsection 35(1), section 26 of the Interpretation Act provides that the deadline for service was Monday, October 6, 2014. The Applicant served the notice of constitutional question on October 7, 2014, so it was one day late.
[17] The Applicant sought the Court’s direction prior to the hearing of this matter as to how to rectify late filing of the notice. Counsel for the Applicant was directed by the Court to obtain the consents of the Attorneys General for the late service and filing of the Applicant's notice of constitutional question. Written consents from all of the Attorneys General were thus filed with the Court before the hearing commenced.
[18] The Applicant is seeking declaratory and injunctive relief in respect of the Policy on the basis that, amongst other things, it infringes paragraph 2(a) and subsection 15(1) of the Charter. She is not directly or explicitly impugning any specific provision of the Act or the Regulations. The Policy at issue here was not promulgated under sections 27(g) and 27(h) of the Act, which permit the Governor in Council to make regulations “(g) prescribing the ceremonial procedures to be followed by citizenship judges” and “(h) respecting the taking of the oath of citizenship”, nor was it published in the Canada Gazette. On the contrary, the Policy originated as the Bulletin issued by CIC on December 12, 2011 and later was embodied in section 6.5 of the Manual dated December 21, 2011. There is potential merit to some of the issues raised and the relief requested by the Applicant in her application for judicial review.
[19] In view of the written consents to the late filing of the notice from all of the Attorneys General, and also that the four Larkman factors all favour the Applicant, it is in the interests of justice that the service date for the Applicant’s notice of constitutional question should be and is hereby extended until the date of such service on October 7, 2014.
III. The Parties’Arguments A. The Applicant’s Arguments [20] The Applicant says she is entitled to declaratory relief at this stage notwithstanding the fact that the Policy has not been applied to her yet since she has not attended a citizenship ceremony (citing Canada (AG) v Downtown Eastside Sex Workers United Against Violence, 2012 SCC 45 at paragraphs 44-52, [2012] 2 SCR 524; Moresby Explorers Ltd v Canada (AG), 2006 FCA 144 at paragraphs 15-16, 350 NR 101).
[21] The Applicant argues that the Policy infringes paragraph 2(a) of the Charter, which requires her to prove two things: (1) wearing the niqab is a religious practice in which she sincerely believes; and (2) the Policy interferes with that practice in a manner that is more than trivial or insubstantial. She claims both requirements are satisfied here. The Applicant states that, even though some sects of Islam do not consider it mandatory to wear a niqab, there is no need to show widespread agreement before finding a violation of her Charter rights. Rather, the Applicant says it is enough that her belief is sincere and has a nexus to religion (Syndicat Northcrest v Amselem, 2004 SCC 47 at paragraph 52, [2004] 2 SCR 551; Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at paragraph 39, [2006] 1 SCR 256), something which the Applicant contends she has proven by her affidavit and corresponding cross-examination.
[22] The Applicant further states that the Policy infringes her religious belief in a more than trivial way. She contends that the purpose of the Policy is to compel her and others like her to temporarily abandon a religious practice, and such a purpose will always be unconstitutional regardless of its effects (R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 334, 18 DLR (4th) 321 [Big M]). Indeed, although the Policy purports to be about allowing visual confirmation that the oath has been taken, the Applicant submits that various public statements made by the Minister of Citizenship and Immigration [Minister] at the time the Policy was introduced, as well as the language used by the Policy, disclose that its true target is Muslim women like her.
[23] Alternatively, the Applicant submits that the effects of the Policy are enough to violate paragraph 2(a) of the Charter, since she must abandon either her religious beliefs or her dream of becoming a citizen, for which she has already made significant sacrifices. Offering citizenship as a prize for such a choice is a significant violation since it denigrates her deeply-held beliefs, and she says that the accommodation offered by the Respondent does not solve the problem; it only serves to stigmatize her for her convictions (McAteer v Canada (AG), 2013 ONSC 5895 at paragraphs 32-33, 117 OR (3d) 353, var’d on other grounds, 2014 ONCA 578, 121 OR (3d) 1; Zylberberg v Sudbury Board of Education, [1988] OJ No 1488 (QL) at paragraph 39, 65 OR (2d) 641, 52 DLR (4th) 577 (CA); Big M at 336).
[24] The Applicant further submits that the Policy is contrary to subsection 15(1) of the Charter, which prohibits discrimination on the grounds of religion and sex. Although the language of the Policy is neutral, according to the Applicant it disproportionately affects Muslim women like her and perpetuates the stereotyping and prejudices against them recognized by the Ontario Court of Appeal in R v NS, 2010 ONCA 670 at paragraph 79, 102 OR (3d) 161 [NS (ONCA)], aff’d 2012 SCC 72, [2012] 3 SCR 726 [NS (SCC)].
[25] The Applicant contends that these violations under paragraph 2(a) and subsection 15(1) cannot be justified under section 1 of the Charter. Visually confirming that the oath was taken was, the Applicant submits, not even important enough to be included in the Act or Regulations, and so cannot be a pressing and substantial objective. Furthermore, the Applicant states that there is no rational connection between ensuring that the oath was taken and visual inspection, since such a method could only confirm that the participants’ mouths were moving; citizenship officials are not lip readers. Indeed, the Applicant notes that every new citizen is already required to sign a declaration that they took the oath (see form CIT 0049 (02‑2008)), which binds them to it. The Respondent will get her signed declaration in any event, and the Applicant says that watching her lips move provides no real assurance that she took the oath.
[26] Moreover, the Applicant argues that the Policy does not minimally impair her rights and freedoms. The evidence before the Court suggests that the Policy affects about 100 women per year, and that the oath takes less than a minute to recite. According to the Applicant, it would be easy for a female citizenship judge or official to take those women’s oaths in private if there was doubt that they recited the oath, which is what used to be done before the Policy was adopted. Alternately, women like the Applicant could be seated closer to the officials or have a microphone attached to them, so that the officials could hear them taking the oath. The Applicant says that these methods are significantly less intrusive and better at ensuring that a woman wearing a niqab took the oath, and the Respondent has offered no justification for adopting a much stricter Policy which requires removal of face coverings.
[27] Finally, the Applicant says that her interests outweigh those of the government. Citizenship is important to her; non-citizens are politically powerless (Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 152, 56 DLR (4th) 1 [Andrews], Wilson J), and the status “not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity” (Andrews at 196, La Forest J). Denying this to the Applicant so long as she wears the niqab makes her feel worthless and as if she does not belong in the Canadian family.
[28] The Applicant also contends that the Policy is unlawful on administrative law grounds. The Policy purports to be mandatory, and in this regard the Applicant points to correspondence between officials at CIC which emphasizes that no substantive accommodation should ever be given. As such, the Applicant submits that the Policy unduly fetters the discretion of citizenship judges and is therefore unlawful (Thamotharem v Canada (Citizenship and Immigration), 2007 FCA 198 at paragraphs 62-64, [2008] 1 FCR 385 [Thamotharem]).
[29] Furthermore, the Applicant says that the Policy is inconsistent with the legislation in several important respects. First, the Act requires people to take the oath, not to be seen taking the oath. According to section 21 of the Regulations, the proof that they did take the oath is their signature on the declaration form (CIT 0049), and the Policy is inconsistent with that by prescribing that only visual confirmation can serve that function. Second, paragraph 17(1)(b) of the Regulations specifically requires citizenship judges to “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof”. According to the Applicant, the Policy forces citizenship judges to violate that mandate and unduly fetters their discretion in this regard. Finally, paragraphs 3(2)(c) and 3(2)(f) of the Canadian Multiculturalism Act, RSC 1985, c 24 (4th Supp), state that federal institutions should enhance respect for the diversity of Canadian society and be sensitive to Canada’s multicultural reality, and the Policy does not satisfy those criteria. Consequently, the Applicant argues that the Policy is unlawful and should be disregarded (Pourkazemi v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1665 (QL) at paragraph 11, 161 FTR 62 (TD)).
IV. The Respondent’s Arguments [30] The Respondent argues that this application is premature. In its view, the Policy is not mandatory and citizenship judges are free not to apply it. As such, there is no way to know what would have happened had the Applicant attended the ceremony and refused to uncover her face. Until she does so, the Respondent says any violation of the Applicant’s Charter rights is speculative and there is no factual foundation for any constitutional challenge. Indeed, according to the Respondent, the absence of such factual foundation is problematic since it deprives the citizenship judge of the deferential standard of review that would otherwise be owed on the Charter determination according to Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 [Doré].
[31] The Respondent acknowledges that there is nothing in the Act or the Regulations which requires that one be “seen” taking the oath. However, the Policy is not, according to the Respondent, de facto legislation. The Minister has the prerogative to make such policies and no legislative authority is needed because the Policy is just that – a policy.
[32] The Respondent says that, as a non-binding guideline, the Policy can only give rise to an expectation that it will be followed (Thamotharem at paragraph 66). It cannot fetter the discretion of citizenship judges, who are quasi-judicial decision-makers statutorily mandated to administer citizenship ceremonies. Indeed, the Respondent submits that the Policy is directed more to CIC staff and not really addressed to citizenship judges. According to the Respondent, it is impossible to tell whether a citizenship judge would have regard to it or consider him or herself bound by it.
[33] Even if a citizenship judge does apply the Policy to the Applicant, the Respondent says that would be reasonable and proportionate to the Charter interests at stake.
[34] With respect to paragraph 2(a) of the Charter, a violation only occurs if the Applicant’s religious practice “might reasonably or actually be threatened” (R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at 759, 35 DLR (4th) 1). According to the Respondent, the Applicant has asserted nothing more than a subjective belief that her freedom of religion would be interfered with if she uncovered her face, and she has removed her veil in the past. In the Respondent’s view, the Applicant has not proven anything more than a trivial violation, as the oath takes less than a minute to recite.
[35] Moreover, the Respondent submits that this case is not like Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, where failure to obtain a driver’s licence would seriously affect the colony’s ability to live up to one of its core tenants of communal self-sufficiency. Rather, if the Applicant chooses not to remove her face covering and is denied citizenship, she nevertheless retains all the benefits of her status as a permanent resident. The Respondent argues that any impact on her religious freedom is therefore minimal.
[36] With respect to subsection 15(1) of the Charter, the Respondent concedes that the Policy mostly affects Muslim women. However, the Respondent contends that distinction is not discriminatory. There is no proof of any pre-existing disadvantage, stereotype or prejudice that is perpetuated by requiring the Applicant to show her face while she takes the citizenship oath. The effects are not onerous, and the Applicant has taken her veil off in public for a driver’s licence even though she does not drive. Furthermore, the Respondent submits that the accommodations offered to the Applicant and the fact that she only needs to remove the veil once during the ceremony corresponds to the Applicant’s actual needs and circumstances, while still satisfying the important objective of ensuring the oath is said aloud by all new citizens.
[37] Even if the Applicant’s Charter rights are engaged, the Respondent argues that any interference with them is justified under section 1 of the Charter. As this would be an administrative decision, the approach to Charter review set out in Doré applies and the standard of review is reasonableness. According to the Respondent, the Policy was created because of concerns that some citizenship candidates were not actually reciting the oath. Relying on the concurring judgment of Mr. Justice Louis LeBel in NS (SCC) at paragraphs 77-78, the Respondent argues that taking the oath is a public act and it reasonably advances an important objective to expect all candidates to come together and recite the oath openly and equally.
[38] The Respondent argues that requiring the Applicant to uncover her face is not a serious limitation on her religious freedom; she has done it before for identity and security purposes. Wearing the niqab is just a personal choice, not a basic sacrament. Indeed, the Respondent contends that it is unclear why a citizenship ceremony, which happens once in a lifetime, is not one of those rare instances where it is absolutely necessary for the Applicant to remove her niqab.
[39] In any event, the Respondent says that citizenship is a privilege, not a right. If the Applicant is opposed to baring her face, then the Respondent says that she should just accept the consequences of not becoming a citizen; she will still retain all the benefits of permanent residence. Given all those factors and the accommodation that the Applicant has been offered, the Respondent says that it would be reasonable for a citizenship judge to find that the balancing exercise favours the Respondent.
V. Issues and Analysis [40] The following issues emerge from the parties’ written submissions and oral arguments:
1. Is the application for judicial review premature?
2. Does the Policy fetter any discretion citizenship judges have?
3. Is the Policy otherwise inconsistent with the legislation or regulations?
4. If the Policy is otherwise unlawful, should the Charter issues be decided?
5. Does the Policy infringe paragraph 2(a) of the Charter?
6. Does the Policy infringe subsection 15(1) of the Charter?
7. If Charter rights are infringed, is the Policy saved by section 1 of the Charter?
A. Is the application for judicial review premature? [41] I disagree with the Respondent’s contention that this application for judicial review is premature. In May v CBC/Radio Canada, 2011 FCA 130 at paragraph 10, 420 NR 23 [May], Mr. Justice Marc Nadon said the following:
While it is true that, normally, judicial review applications before this Court seek a review of decisions of federal bodies, it is well established in the jurisprudence that subsection 18.1(1) permits an application for judicial review “by anyone directly affected by the matter in respect of which relief is sought”. The word “matter” embraces more than a mere decision or order of a federal body, but applies to anything in respect of which relief may be sought: Krause v. Canada, [1999] 2 F.C. 476 at 491 (F.C.A.). Ongoing policies that are unlawful or unconstitutional may be challenged at any time by way of an application for judicial review seeking, for instance, the remedy of a declaratory judgment: Sweet v. Canada (1999), 249 N.R. 17. [Emphasis added]
[42] Case law has established that not all policies are equal and some may be binding law (see: Thamotharem at paragraph 65; Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at paragraphs 58-65, [2009] 2 SCR 295). As the Federal Court of Appeal recognized in Thamotharem at paragraph 63: “the validity of a rule or policy itself has sometimes been impugned independently of its application in the making of a particular decision.” Indeed, part of the reason that policies are published is so that people can know of them and organize their affairs accordingly, and the Policy in this case could be dissuading women who wear a niqab from even applying for citizenship. In such circumstances, a direct challenge to the Policy is appropriate.
[43] Furthermore, there are internal limits to a typical judicial review application that could actually interfere with the Court’s ability to examine the constitutionality of the Policy. Most notably, the record would usually be limited to only that material actually before a citizenship judge (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at paragraphs 19-20, 428 NR 297), which likely would not include much of the material submitted as part of the record in this case. Since a notice to appear is usually sent about two weeks before the ceremony, and the Applicant only received her notice six days in advance of her ceremony, she would not even have had enough time to give notice of a constitutional question pursuant to section 57(2) of the Federal Courts Act, which would likely preclude any review of the constitutional issues by both the citizenship judge and this Court (Bekker at paragraph 11). Accordingly, despite the Respondent’s arguments in this regard, this application is not premature.
B. Does the Policy fetter any discretion citizenship judges have? [44] The Respondent contends that it is impossible to determine in advance whether the Policy will fetter a citizenship judge’s discretion. According to the Respondent, citizenship judges must make an adjudicative decision about whether to apply the Policy, presumably complete with consideration of Charter values and a factual inquiry into the sincerity of every candidate who wears a veil. In the Respondent’s view, the Policy is only a guideline that is not even directed at citizenship judges and which they are free to disregard.
[45] However, section 1 of the Manual states, amongst other things, that it is about: “the roles and protocols that different participants (citizenship judge, volunteer presiding officials, clerk of the ceremony, special guests, etc.) must respect during ceremonies” (emphasis added). Although section 2 of the Manual states that it is a “…guide…to help Citizenship and Immigration Canada (CIC) staff plan and deliver citizenship ceremonies,” no such permissive language is employed in the operative sections of the Policy. On the contrary, at section 6.5.1, the Policy says that citizenship “candidates are required to remove their face coverings for the oath taking portion of the ceremony.” If they do not remove their face coverings, then section 6.5.2 dictates that “…the certificate is NOT to be presented” (emphasis in original). Such a candidate is given one last chance to take the oath at another citizenship ceremony, but “should that person again NOT be seen taking the oath, or fail to remove a full or partial face covering, the procedures outlined above for refusal are to be followed” (emphasis in original). The candidate would then be forced to reapply for citizenship and face the same Policy again or else abandon his or her quest for citizenship. A refusal to remove a face covering, therefore, precludes receipt of a citizenship certificate and will deny that person citizenship, even if the officials are confident that the person actually took the oath by hearing it recited.
[46] Furthermore, internal correspondence between CIC officials demonstrates an intention that removal of a face covering be mandatory at public citizenship ceremonies. For instance, in an e-mail dated November 8, 2011 (certain portions of which have been redacted), one CIC official wrote that:
In looking over the hand written comments from the Minister, it is pretty clear that he would like the changes to the procedure to ‘require’ citizenship candidates to show their face and that these changes be made as soon as possible. … My interpretation is that the Minister would like this done, regardless of whether there is a legislative base and that he will use his prerogative to make policy change.
[47] Similarly, in response to some queries about potential accommodations, another CIC official wrote in an email dated December 13, 2011, that:
Under the new directive [Operational Bulletin 359] …all candidates for citizenship must be seen taking the oath of citizenship at a citizenship ceremony. For candidates wearing full or partial face coverings, face coverings must be removed at the oath taking portion of the ceremony in order for CIC officials and the presiding official (Citizenship Judge) to ensure that the candidate has in fact taken the Oath of Citizenship. Under this new directive there are no options for private oath taking or oath taking with a female official as all candidates for citizenship are to repeat the oath together with the presiding official. [Emphasis added]
[48] During an interview with CBC Radio on December 13, 2011, a Toronto-area citizenship judge took a different view and suggested that: “If [veiled women] don’t take the face covering off, there is an opportunity for them to come in front of the judge again after the ceremony and take the oath. … [T]hey don’t have to remove the veil right there in front of all these people.” Subsequent email correspondence between CIC media officials indicated that these comments by this citizenship judge were “problematic” as they “contradict our lines.”
[49] Indeed, the intention that it be mandatory for people to remove face coverings is also evident in public statements about the new directive when it was introduced. The Minister at the time said during an interview with the CBC on December 12, 2011, that the Policy was adopted after one of his colleagues told him about a citizenship ceremony where four women had been wearing niqabs. The Minister stated in this interview that taking the citizenship oath “is a public act of testimony in front of your fellow citizens, it’s a legal requirement, and it’s ridiculous that you should be doing so with your face covered”; and also that: “[y]ou’re standing up in front of your fellow citizens making a solemn commitment to respect Canada’s laws, to be loyal to the country, and I just think it’s not possible to do that with your face covered.”
[50] Despite the mandatory intentions behind the Policy though, it is the Act and the Regulations that ultimately determine whether a citizenship judge has any discretion with respect to applying the Policy. The relevant provisions of the Act and Regulations are set out in Annex B to this decision.
[51] Most pertinently, subsection 26(2) of the Act says that “a citizenship judge shall perform such other duties as the Minister prescribes for carrying into effect the purposes and provisions of this Act”. The term “shall” is imperative (Interpretation Act, s 11), and the Policy thus requires citizenship judges to ensure that candidates for citizenship have been seen, face uncovered, taking the oath. Unlike in Thamotharem, this requirement in the Policy is not merely an interpretive guideline. It is mandatory and tantamount to a law made pursuant to the Minister’s statutory authority to assign duties to citizenship judges who preside at citizenship ceremonies.
[52] Contrary to the Respondent’s submissions in this regard therefore, the Policy does constrain a citizenship judge’s scope of action. This conclusion is reinforced by section 1 of the Manual in which the Policy is now contained, wherein it is stated that the Manual is about “the roles and protocols that different participants (citizenship judge, volunteer presiding officials, clerk of the ceremony, special guests, etc.) must respect during ceremonies” (emphasis added). Moreover, the language of the Policy contains directives and commands that read much like a statute or regulation, and the statements of CIC officials and the Minister at the time of the Policy’s implementation are evidence that it is regarded as if it were akin to a statute or regulation.
[53] Insofar as a citizenship judge has no discretion but to apply the Policy, the imposition of this mandatory duty upon a citizenship judge is contrary to paragraph 17(1)(b) of the Regulations, which requires a citizenship judge to “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof” (emphasis added). In this regard, “religious solemnization” is not just about the mere act of taking the oath itself, allowing candidates to swear the oath on the holy book of their choice or, in the case of a solemn affirmation, on no book at all. Rather, it extends also to how the oath is administered and the circumstances in which candidates are required to take it. Further, the Respondent concedes that in this respect, citizenship judges are “quasi-judicial decision makers who have a statutory mandate to administer the oath ceremony.”
[54] Citizenship judges cannot exercise that function to determine what degree of freedom is possible if they instead obey the Policy’s directive to ensure that candidates for citizenship have been seen, face uncovered, taking the oath. How can a citizenship judge afford the greatest possible freedom in respect of the religious solemnization or solemn affirmation in taking the oath if the Policy requires candidates to violate or renounce a basic tenet of their religion? For instance, how could a citizenship judge afford a monk who obeys strict rules of silence the “greatest possible freedom” in taking the oath if he is required to betray his discipline and break his silence? Likewise, how could a citizenship judge afford a mute person the “greatest possible freedom” in taking the oath if such person is physically incapable of saying the oath and thus cannot be seen to take it?
[55] As a citizenship judge cannot comply with both the Policy and paragraph 17(1)(b)