Soft Law and Religious Freedom: Ishaq v. Minister of Citizenship and Immigration, 2015 FC 156
Ishaq v. Minister of CItizenship and Immigration, 2015 FC 156 has received enormous media attention. The case touches on whether the government can require an applicant for Canadian citizenship to take off her niqab before she takes the oath of allegiance. Moreover, having lost at first instance, the federal government was very loud in announcing its intention to appeal the decision.
Despite the impassioned commentary it has provoked, this is almost purely an administrative law case. It turns on the relationship between a regulation and a soft-law instrument, on which Boswell J.’s judgment in favour of the applicant is strong. However, there is also an interesting procedural point, on which the federal government could conceivably win its appeal.
First, the clash between hard and soft law. Section 17(1)(b) of the Citizenship Regulations provides that a citizenship judge shall “administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof” (my emphasis). Meanwhile, s. 6.5 of the federal government’s policy manual, CP 15: Guide to Citizenship Ceremonies provides: “Candidates wearing face coverings are required to remove their face coverings for the oath taking portion of the ceremony” (my emphasis).
Boswell J. noted that the policy manual specifies that citizenship judges “must” follow its provisions: “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” (at para. 52). Therefore, he concluded, the policy manual fettered the citizenship judge’s discretion:
 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?
And because soft law cannot trump hard law, the policy manual’s prescriptions were unlawful: “the mandatory directive in a guideline such as the Policy, by which citizenship judges must ensure that candidates for citizenship have been seen, face uncovered, taking the oath, cannot trump the Act or the Regulations“ (at para. 56).
This seems right to me, assuming one interprets the policy manual as mandatory. Therein lies an important procedural point, however, on which the federal government may prevail on appeal. Was the application for judicial review premature? Boswell J. held it was not, citing authority: “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” (May v CBC/Radio Canada, 2011 FCA 130, at para 10, per Nadon J.A.).
However, a citizenship judge is an administrative decision-maker, required to take Charter values into account in the exercise of her functions. In my view, she must also interpret statutes, regulations and soft-law instruments consistently with Charter values, including those underlying the guarantee of freedom of religion. For example, I can imagine a citizenship judge faced by a veiled oath-taker interpreting the policy manual narrowly, either by requiring the veil to be lifted only where there would be doubt about whether the candidate had actually taken the oath, or by applying the policy manual only to burqas and not to other veils that expose some of the face. Either approach would harmonize the prescriptions of the policy manual with the statutory context and Charter values.
Indeed, Boswell J. also went on to suggest that the requirement that a candidate for citizenship be seen to take the oath is inconsistent with the statute and regulations: “the candidate’s signature beneath [the] written oath or affirmation of citizenship form, rather than a visual confirmation of the candidate saying the oath, that is the only proof needed that a candidate has sworn or affirmed the oath of citizenship” (at para. 62). If this is so, then a citizenship judge might be free to disregard the prescription in the policy manual altogether, strengthening the argument that the application was premature. Moreover, a decision by the citizenship judge would provide very useful context to a reviewing court, in the event that the applicant was not permitted to leave her niqab in place and sought a remedy subsequently.
This is not an easy question to resolve, evidence of the uncertain place of soft law in the common-law mindset. On the one hand, soft law does not change an individual’s legal position: a decision-maker must apply the law and/or exercise discretion before coming to a conclusion. There is then no reason to impugn it independently of a final decision. On the other hand, there is an air of unreality about the mantra that soft law cannot modify legal rights or obligations: the world and its mother knows that decision-makers often treat non-binding guidelines with the reverence usually reserved for edicts etched on tablets of stone. And even if they are not treated as binding, they may still have real-world effects, as Boswell J. pointed out: “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” (at para. 42). I tend to think, though, that in a world that favours reasoned decision-making, including consideration of Charter values, by administrative decision-makers, this sort of application is premature.
For an excellent recent paper on this question, which concludes by suggesting that soft law problems should be met with soft law remedies — such as those provided by the Ombudsman — see Greg Weeks, ‘The Use and Enforcement of Soft Law by Australian Public Authorities’ (2014) 42 Federal Law Review 181.
By way of footnote, it is interesting to observe that Boswell J. did not agree with the applicant’s suggestion that the policy manual evidenced a failure to apply the principles of the Canadian Multiculturalism Act:
 I disagree with the Applicant on this point. The CMA cannot be interpreted so broadly that any government policy must be invalidated if it in any way might derogate from the objectives of section 3(2). On the contrary, when it comes to specifically implementing the policies set out in the CMA, subsection 6(1) says that “ministers of the Crown, other than the Minister, shall, in the execution of their respective mandates, take such measures as they consider appropriate to implement the multiculturalism policy of Canada”. In this case, the Minister did not consider allowing women to wear niqabs while taking the oath of citizenship to be an appropriate way to implement multiculturalism policy and, in my view, that does not infringe the CMA.
A small blow against those who might see Canada as an example of multiculturalism gone mad!
This content has been updated on February 22, 2015 at 14:39.