Canada (Citizenship and Immigration) v. Ishaq

Canada (Citizenship and Immigration) v. Ishaq Court (s) Database Federal Court of Appeal Decisions Date 2015-09-15 Neutral citation 2015 FCA 194 File numbers A-124-15 Notes A correction was made on September 22, 2015 Decision Content Date: 20150915 Docket: A-124-15 Citation: 2015 FCA 194 CORAM: TRUDEL J.A. WEBB J.A. GLEASON J.A. BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Appellant and ZUNERA ISHAQ Respondent and ATTORNEY GENERAL OF ONTARIO Intervener Heard at Ottawa, Ontario, on September 15, 2015. Judgment delivered from the Bench at Ottawa, Ontario, on September 15, 2015. REASONS FOR JUDGMENT OF THE COURT BY: GLEASON J.A. Date: 20150915 Docket: A-124-15 Citation: 2015 FCA 194 CORAM: TRUDEL J.A. WEBB J.A. GLEASON J.A. BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Appellant and ZUNERA ISHAQ Respondent and ATTORNEY GENERAL OF ONTARIO Intervener REASONS FOR JUDGMENT OF THE COURT Delivered from the Bench at Ottawa, Ontario, on September 15, 2015. [1] In the judgment under appeal, the Federal Court declared that the change in policy applicable to women who wear the niqab, that requires them to unveil to take the oath of citizenship, was unlawful. This policy change first came into effect on December 12, 2011 and was initially enshrined in Citizenship and Immigration Canada’s [CIC’s] Operational Bulletin 359. The policy change was shortly thereafter incorporated into section 6.5 of CIC’s policy manual, CP 15:Guide to Citizenship Ceremonies. [2] One of the reasons given by the Federal Court for its judgment was the determination that this policy change was mandatory. The Federal Court also found that the policy change conflicted with the requirements of the Citizenship Act, R.S.C. 1985, c. C-29 and with the regulations made under that Act. [3] 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. [4] While we do not necessarily agree with all the reasons given by the Federal Court, we 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. [5] We decline to address the issues concerning the legality of the impugned policy change under the Canadian Charter of Rights and Freedoms as a determination on this point is unnecessary for the disposition of this case and the record before us is fairly scant as concerns the Charter challenge. Moreover, we believe that it is in the interests of justice that we not delay in issuing our decision through the examination of an unnecessary issue so as to hopefully leave open the possibility for the respondent to obtain citizenship in time to vote in the upcoming federal election. [6] As a result, the appeal will be dismissed with costs. “Mary J.L. Gleason” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-124-15 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. ZUNERA ISHAQ PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: September 15, 2015 REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL J.A. WEBB J.A. GLEASON J.A. DELIVERED FROM THE BENCH BY: GLEASON J.A. APPEARANCES: Peter Southey Negar Hashemi Julie Waldman For The Appellant Lorne Waldman Naseem Mithoowani CO-COUNSEL For The Respondent Marlys Edwardh Daniel Sheppard CO-COUNSEL FOR THE RESPONDENT Courtney Harris Hayley Pitcher FOR THE INTERVENER SOLICITORS OF RECORD: William F. Pentney Deputy Attorney General of Canada 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