Docket: A-124-15
Citation: 2015 FCA 212
Present: TRUDEL
J.A.
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Appellant
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and
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ZUNERA ISHAQ
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Respondent
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and
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ATTORNEY
GENERAL OF ONTARIO
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Intervener
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REASONS
FOR ORDER
TRUDEL J.A.
[1]
This is a Motion by the Minister of Citizenship
and Immigration (the Minister) for a stay of a September 15, 2015 judgment of
this Court (2015 FCA 194) and of the related February 6, 2015 judgment of the
Federal Court (2015 FC 156).
[2]
Both judgments relate to operational bulletin
359, dated December 12, 2011, later incorporated into Policy Manual C-15 (the
Policy). The Policy requires citizenship candidates who wear full or partial
face coverings to remove those face coverings during the recitation of the oath
of citizenship at a citizenship ceremony, in order to receive their Canadian
citizenship.
[3]
The respondent challenged the Policy under
section 2(a) and subsection 15(1) of the Canadian Charter of Rights
and Freedoms, Part I of The Constitution Act 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982 c. 11 (Charter), and
on the administrative law grounds that the Policy was inconsistent with its
governing legislation and that it unduly fettered the discretion of citizenship
judges who administer the oath.
[4]
On a preliminary matter, the Federal Court found
that the application was not premature, as policies alleged to be unlawful or
unconstitutional may be challenged at any time (May v. CBC/Radio Canada,
2011 FCA 130, 231 C.R.R. (2d) 369). This argument was not strongly advocated by
the appellant before our Court with respect to the administrative question.
[5]
The Federal Court declared the Policy to be unlawful,
finding it to be mandatory in nature and inconsistent with the Citizenship
Act, R.S.C. 1985, c. c-29 and its regulations. The Federal Court judge
exercised his discretion not to decide the Charter issues, as it was
unnecessary to do so.
[6]
Although this Court did not endorse all of the
Federal Court’s findings, it dismissed the Minister’s appeal stating that there
was no basis to interfere with the Federal Court’s finding as to the mandatory
nature of the impugned change in policy. This Court decided not to consider the
Charter issues, because it was unnecessary for the disposition of the
case and because the record was relatively scant with respect to those issues.
[7]
This Court and the Federal Court did not decide
whether the Minister could or could not impose rules regarding taking the oath,
but only that he could not achieve the result that he seeks through a change in
policy. It remains open to the Minister to proceed by way of properly enacted
regulations, subject of course to Charter limits.
[8]
The Minister has filed a Notice of Application
for Leave to Appeal to the Supreme Court of Canada and seeks a stay of the
Federal Court of Appeal and Federal Court’s judgments until the later of
either: (a) final determination of the appellant’s Application for Leave to
Appeal to the Supreme Court of Canada or; (b) if leave is granted, a final
determination of the appeal by the Supreme Court of Canada.
[9]
Having considered the appellant’s record, the
respondent’s record and the appellant’s reply, I conclude that the Motion for stay
is to be denied with costs to the respondent.
[10]
I also took notice of the Memorandum of Fact and
Law of the Intervenor, the Attorney General of Ontario. In view of my
conclusion, I need not address the appellant’s reply submissions that the Attorney
General of Ontario does not have the standing to intervene in this stay. She
intervened as of right in the Federal Court of Appeal pursuant to a notice of
Constitutional Question, but no Constitutional Question was addressed by our
Court in its decision that is the subject of the appellant’s Motion for stay.
[11]
The grounds for the Motion raised by the
appellant are as follows:
a) The
Minister has filed a Notice of Application for Leave to Appeal to the Supreme Court
of Canada from this Court’s September 15, 2015 dismissal of the Minister’s
appeal from the decision of Boswell J. dated February 6, 2015 (the Judgments);
b) The
Judgments raise an issue of public importance that has not been decided by the
Supreme Court of Canada: what is the proper interpretive approach to construing
an administrative policy in order to determine whether it has an impermissible
mandatory effect fettering administrative decision making in a manner not
authorized by statute?;
c) By
providing guidance to citizenship judges who must ensure that the oath, the
last statutory requirement to become a citizen, is taken, the policy at issue
enhances the integrity of obtaining citizenship and promotes the broader
objective of having the oath recited publicly, openly and in community with others.
These are important Canadian values and an integral part of becoming a Canadian
citizen. Irreparable harm to the public interest in these values would result
from the policy being subject to a declaration of invalidity pending the appeal
to the Supreme Court of Canada;
d) Regarding
the balance of inconvenience, the irreparable harm to the public interest
represented by the Minister if the stay is not granted exceeds the harm to the
Respondent if the stay is granted;
e) This stay
Motion is urgent because if the stay is not granted, the Respondent’s taking of
the oath will render the Minister’s appeal to the Supreme Court of Canada moot;
f) Rules 8,
35, and 55 of the Federal Courts Rules, and section 65.1 of the Supreme Court
Act, R.S.C., 1985, c. S-26.
[12]
Subsection 65.1(1) of the Supreme Court Act
states that:
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Supreme Court Act, R.S.C. 1985, c.
S-26
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Loi sur la Cour Suprême, L.R.C. 1985, ch. S-26
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65.1(1) The Court, the court appealed
from or a judge of either of those courts may, on the request of the party
who has served and filed a notice of application for leave to appeal, order
that proceedings be stayed with respect to the judgment from which leave to
appeal is being sought, on the terms deemed appropriate.
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65.1(1)
La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de
la partie qui a signifié et déposé l’avis de la demande d’autorisation
d’appel, ordonner, aux conditions jugées appropriées, le sursis d’exécution
du jugement objet de la demande.
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[13]
Insofar as the Motion concentrates on the
assertion of an issue of public importance and central Canadian values at play
in this case, it seems awkward for this Court rather than the Supreme Court of
Canada to decide whether a stay should be granted especially when the appellant
has already filed his Notice of Application for Leave to Appeal to the Supreme
Court of Canada.
[14]
This said, it is trite law that the test for whether
to grant a Motion to stay is set out in RJR — Macdonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311 [RJR‑Macdonald]: First, a
preliminary assessment must be made of the merits of the case to ensure that a
serious question has been raised. Secondly, it must be determined whether the
applicant would suffer irreparable harm if the application were refused. Finally,
an assessment must be made as to which of the parties would suffer greater harm
from the granting or refusal of the remedy pending a decision on the merits (Ibid, at page 334).
[15]
It is also trite law that failure of any of the
three elements of the test is fatal.
[16]
I chose not to pronounce myself on whether or
not there is a serious issue to be determined. As indicated, I am of the
respectful view that this is a question better left for the Supreme Court of
Canada.
[17]
I will say, however, that the issue the appellant
raises in his motion is not one which this Court considered.
[18]
Indeed, the appellant’s proposed issue has
nothing to do with the matter as it was presented before us, where the
appellant conceded that his appeal could not succeed in the event that the
Policy was found to be mandatory and that valid regulations would have to be promulgated
by the Governor in Council pursuant to subsection 27(h) of the Citizenship
Act in order to achieve the goal which the Minister seeks to achieve
through policy assertions.
[19]
My ultimate conclusion flows from my finding
that the appellant fails on the second prong of the RJR‑Macdonald test
‑ the irreparable harm.
[20]
Presuming that the appellant is right that the
Policy at issue is not mandatory and citizenship judges can apply it or not —
to use the appellant’s language as expressed by counsel at the hearing of the
appeal, that the Policy merely amounts to an encouragement in the strongest
language possible — how can one raise a claim of irreparable harm?
[21]
Moreover, a declaration that the Policy is
unlawful leaves no void, simply reverting to the underlying laws and
regulations and lawful policies previously in force. Before this Court, counsel
for the appellant went so far as to characterize the Policy as already having
no force or effect, prior to any judicial intervention. It is simply
inconsistent to claim, on the one hand, that a policy has no binding effect on
decision-makers, but that irreparable harm would result if that policy was to
be declared unlawful on the other.
[22]
As the respondent rightly states, Citizenship
and Immigration Canada had valid guidelines and procedures to ensure that
citizenship candidates take the oath prior to the adoption of the Policy
(Respondent’s written representations, at para. 8). These guidelines and
procedures are undisturbed by the finding that the Policy is unlawful. There is
no legislative or regulatory void.
[23]
I find that the appellant has not demonstrated
that refusing his application for stay would result in irreparable harm to the
public interest. This suffices to dispose of the appellant’s motion for stay.
[24]
As a result, the motion for stay is dismissed
with costs to the respondent.
"Johanne Trudel"
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