article from the star newspaper from February 6, 2016
The Federal Court of Canada has ruled it is “unlawful” for Ottawa to order new citizens to remove their face-covering veil when taking the oath of citizenship
The federal government must immediately lift its existing ban allowing Toronto’s Zunera Ishaq to reschedule a new citizenship ceremony unless it appeals the ruling and receives the permission to suspend the order, the Federal Court said in a decision released Friday.
While it is not unusual to have government policies overturned in breach of Charter and constitutional rights, the court ruling is unusual because the decision was based on the finding that the ban mandated by the immigration minister violated the government’s own immigration laws.
“To the extent that the policy interferes 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,” wrote Justice Keith M. Boswell, “it is unlawful.”
Ishaq was sponsored by her husband to Canada from Pakistan in 2008 and successfully passed the citizenship test in November 2013.
She was scheduled to be sworn in at a citizenship ceremony in Scarborough two months later but decided to put it on hold after learning she would need to unveil her niqab under a ban introduced in 2011 by then-Immigration Minister Jason Kenney. Her Charter challenge ensued.
“From the moment the minister announced the policy, many of us felt it’s illegal. The court confirms that it is the case. It is not a requirement in the law for someone to be seen in front of a (citizenship) judge taking the oath. Signing the paper is all (that’s) required,” said Ishaq’s lawyer, Lorne Waldman.
“Clearly, the policy was driven by Kenney himself. All documents found he was the driving force behind it.”
Ishaq, who started wearing niqab since she was 15, had no objection to unveil herself for the purposes of her identification before taking the citizenship test.
However, she objected to the requirement to remove the veil at the citizenship ceremony because it is public and unnecessary for the purposes of identity or security.
Immigration officials subsequently offered to seat her in either the front or back row and next to a woman at the ceremony, but she refused the arrangement since the citizenship judge and officers could still be male, and there could potentially be photographers at the event.
In refuting the government’s argument that the court challenge was premature because Ishaq’s scheduled ceremony had yet to happen, the court said part of the reason policies are published is so that people can know of them and organize their affairs accordingly.
“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,” the 42-page decision said.
While the government also argued that the ban was only a guideline that is not even directed at citizenship judges, and which they were free to disregard, the judge found “no such permissive language” in the policy.
Internal correspondence between immigration officials and Kenney’s public statements, Justice Boswell noted, demonstrates the government’s intention to make the removal of face-covering mandatory, citing an email that read, “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.”