http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108413/index.do
Case name Canada (Office of the Information Commissioner) v. Canada (National Defence)
Court (s) Database Federal Court of Appeal Decisions
Date 2015-03-03
Neutral citation 2015 FCA 56
File numbers A-163-14
Date: 20150303
Docket: A-163-14
Citation: 2015 FCA 56
CORAM:
NOËL C.J.
STRATAS J.A.
SCOTT J.A.
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant
and
MINISTER OF NATIONAL DEFENCE
Respondent
and
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
Intervener
Heard at Ottawa, Ontario, on November 19, 2014.
Judgment delivered at Ottawa, Ontario, on March 3, 2015.
REASONS FOR JUDGMENT BY:
NOËL C.J.
CONCURRED IN BY:
STRATAS J.A.
SCOTT J.A.
Date: 20150303
Docket: A-163-14
Citation: 2015 FCA 56
CORAM:
NOËL C.J.
STRATAS J.A.
SCOTT J.A.
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant
and
MINISTER OF NATIONAL DEFENCE
Respondent
and
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
Intervener
REASONS FOR JUDGMENT
NOËL C.J.
[1] This is an appeal brought by the Information Commissioner of Canada (the Commissioner) from a decision of the Federal Court (2014 FC 205) wherein Kane J. (the Federal Court judge) dismissed her application for judicial review of a decision by the Department of National Defence (DND) to assert, in response to a request for records under the Access to Information Act, R.S.C., 1985, c. A-1 (the Act), an extension of 1,110 days.
[2] The Information and Privacy Commissioner of Ontario (the intervener) was granted leave to intervene in the present appeal.
[3] At issue is whether the Federal Court has jurisdiction under section 42 of the Act to review a decision by a government institution under subsection 9(1) to extend the time limit set out in section 7. The Federal Court judge answered this question in the negative.
[4] For the reasons that follow, I would propose that the appeal be allowed.
[5] The legislative provisions which are relevant to the analysis are set out in the annex to these reasons.
BACKGROUND
[6] On February 3, 2011, a lawyer acting for his clients (the requester) requested from DND access to records relating to the sale of certain military assets.
[7] On March 4, 2011, DND notified the requester that, pursuant to subsection 9(1) of the Act, it was extending the 30-day time limit set out in section 7 by 1,110 days in order to deal with the request. In response, the requester communicated his intent to file a complaint with the Commissioner and proceeded to do so on or about March 22, 2011.
[8] On March 29, 2011, the Commissioner provided notice of her intention to investigate pursuant to section 32 of the Act. During the course of the investigation, DND informed the Commissioner that 230 of the 1,110 days had been taken under paragraph 9(1)(a) to deal with the large number of records involved and that the remaining 880 days had been taken under paragraph 9(1)(b) to complete the necessary consultations with third parties.
[9] In May 2012, DND informed the Commissioner that it had identified 2,400 pages requiring review and consultation. DND also provided several reasons for the length of the extension taken, citing among other things the need to review the documents for matters of solicitor-client and litigation privilege, the occurrence of a major and unprecedented software malfunction in the department’s access to information unit, and the need to consult with three government departments, being Public Works and Government Services Canada (PWGSC), the Department of Justice (DOJ), and the Department of Foreign Affairs and International Trade (DFAIT). DND advised that DFAIT might in turn be required to consult with foreign governments.
[10] On July 9, 2012, DND sent the relevant records to the three consulting departments. While PWGSC and DOJ provided a response to DND by August 15, 2012, DFAIT responded only on August 31, 2012, and notified DND that it would need another 120 days to complete its consultations.
[11] On October 18, 2012, the Commissioner reported the results of her investigation to DND. DND was found to have breached its duty under subsection 4(2.1) of the Act, as it failed to make every effort to process the request in a timely manner. DND’s asserted extension was also found to be invalid, as the criteria for an extension under paragraph 9(1)(a) were not all met, and the time taken under paragraph 9(1)(b) was unreasonably long. Given the Commissioner’s finding of invalidity, she concluded that the applicable time limit for meeting the requester’s request remained March 4, 2011, 30 days past the point in time at which the original request had been made. Because no response had been received by that date, DND was found to have been in a state of deemed refusal pursuant to subsection 10(3) of the Act.
[12] The Commissioner recommended that DND commit to respond by February 28, 2013. On November 6, 2012, DND informed the Commissioner that it could not so commit, as the consultations in question were external and beyond its control.
[13] On January 11, 2013, acting under section 42 of the Act, the Commissioner filed an application for judicial review in Federal Court. The Commissioner sought a declaration that DND was in a state of deemed refusal for having failed to give access within the time limits set out in the Act and an order directing DND to respond to the request within a 30-day period.
[14] On September 11, 2013, 27 days before the Federal Court hearing, DND gave the requester access to the requested documents. Given this development, DND moved to dismiss the Commissioner’s application on the basis that the underlying issue had become moot.
[15] The motion to dismiss was heard on October 8, 2013, in conjunction with the judicial review application.
DECISION OF THE FEDERAL COURT
[16] By decision rendered on March 3, 2014, the Federal Court judge disposed of both the motion to dismiss and the judicial review application. Though she agreed that the dispute was moot, consideration of the factors set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 led her to exercise her discretion to nevertheless consider the Commissioner’s request for a declaration.
[17] Before considering the reasonableness of the extension taken by DND, the Federal court judge first considered whether the Federal Court had jurisdiction pursuant to section 42 of the Act to issue the requested declaration.
[18] According to the Federal Court judge, the answer to this question turned on whether and when a time extension taken by a government institution pursuant to subsection 9(1) of the Act can amount to a deemed refusal under subsection 10(3). Because the Federal Court’s jurisdiction is limited to instances of refusal (sections 41 and 42), a deemed refusal is the only route by which to challenge a government institution which extends the time under subsection 9(1), without actually refusing to provide the requested records.
[19] The Federal Court judge ultimately concluded that, where a government institution takes an extension under subsection 9(1), it will not enter a state of deemed refusal unless and until it fails to give access by the date on which the asserted extension expires (Reasons at paras. 97 to 99).
[20] The Federal Court judge supported this conclusion on several grounds. First, she pointed to the language of the Act. Under section 7 of the Act, the head of a government institution has 30 days to respond to an access request. Subsection 9(1) of the Act allows for the extension of this 30-day limit “for a reasonable period of time, having regard to the circumstances”. Subsection 10(3) of the Act deems a refusal to have taken place where the records requested are not provided within the time limits provided by the Act. According to the Federal Court judge, this last provision provides in effect that “where there is no outright refusal of access, if the requested records are not provided within 30 days or within the period of time claimed as an extension under section 9, there is a deemed refusal” (Reasons at para. 66).
[21] The Federal Court judge also contrasted the language in section 30 of the Act with that in sections 41 and 42. Section 30, in setting out when the Commissioner shall investigate complaints, distinguishes between complaints following a refusal of access (paragraph 30(1)(a)) and those following an asserted extension that the requester believes to be unreasonable (paragraph 30(1)(c)). Sections 41 and 42, however, in setting out the grounds for judicial review, speak only of refusals. Had Parliament intended to grant the Federal Court jurisdiction to review the reasonableness of extensions, it would have done so expressly, as it did in setting out the grounds for complaints to the Commissioner (Reasons at paras. 96, 105 and 106). Read together, the provisions make it clear that, ultimately, the only remedy available for an allegedly unreasonable extension is to invite the Commissioner to investigate, make recommendations to the government institution concerned and, if necessary, make note of the behaviour in her Annual or Special Report (Reasons at paras. 105 and 109).
[22] The Federal Court judge further based her conclusion on several earlier Federal Court decisions. She relied in particular on Public Service Alliance of Canada v. Canada (Attorney General), 2011 FC 649, 391 F.T.R. 28 [PSAC] wherein Beaudry J. stated (at para. 21):
In my view, there can be no refusal and therefore no review pursuant to section 41 of the Act until the deadline for processing a request has passed. The language of the Act clearly limits this Court’s jurisdiction to the review of refusals, whether actual or deemed, and leaves no room for the review of extensions.
[23] The Federal Court judge also cited another Federal Court decision (Canada (Attorney General) v. Canada (Information Commissioner), 2002 FCT 136, 216 F.T.R. 274 [Attorney General]) wherein Kelen J. held that (at paras. 26 and 27):
In the case at bar, the time limit for giving access has been extended to three years and that time period has not yet passed. Accordingly, there is no “deemed refusal to give access” since the government institution has not refused to give access within the extended time limit.
[24] The Federal Court judge took note of two other Federal Court decisions which, according to the Commissioner, went the other way (Reasons at para. 89, citing Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1989] 1 F.C. 3 (T.D.) [External Affairs(I)] and Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 514, 3 T.C.T. 5297 [External Affairs(II)]), but held nevertheless that the jurisprudence has not been shown to be inconsistent (Reasons at para. 101).
[25] The Federal Court judge further supported her conclusion on the basis of policy reasons. If the Commissioner’s position were accepted, the asserted extension would have been held to be invalid and DND would therefore have been deemed to have refused access following the expiry of the 30-day time limit provided for under section 7 of the Act. In the Federal Court judge’s view, such a decision would not necessarily have sped up the provision of the requested records in the case at bar (Reasons at para. 112). Moreover, the Court might not be best positioned to determine what the appropriate time to comply would be (ibidem). Finally, DND would be required to respond at once to both the judicial review application and the access request, potentially “duplicat[ing] efforts and spread[ing] resources even thinner” (ibidem). According to the Federal Court judge, if government institutions are to make the 30-day time limit without extensions, they will simply need greater resources (Reasons at paras. 126 to 127).
[26] As DND provided access to the documents claimed within its own deadlines as asserted under subsection 9(1), the Federal Court judge held that she had no jurisdiction to issue the declaration sought. Hence, there was no need for the Court to decide whether the 1,110-day extension was reasonable (Reasons at para. 122).
POSITION OF THE APPELLANT
[27] The Commissioner argues that an extension under section 9 of the Act represents a conditional exception to the 30-day time limit set out in section 7 (Commissioner’s memorandum at paras. 42, 45, and 51). Where a government institution asserts an extension under section 9, but fails to meet the conditions, the extension is void ab initio (Commissioner’s memorandum at para. 63). One of the conditions under section 9 is that the extension be for “a reasonable period of time, having regard to the circumstances” (Commissioner’s memorandum at paras. 42, 45, and 51).
[28] Subsection 10(3) provides that a deemed refusal occurs where a government institution fails to give access to a requested record “within the time limits set out in [the] Act”. Read together, sections 7 and 9 set out these time limits (Commissioner’s memorandum at para. 61). A deemed refusal will therefore occur after 30 days if a government institution has given neither an actual refusal nor access in response to a request and has taken no valid extension (Commissioner’s memorandum at paras. 49 and 63).
[29] The Commissioner argues that the Federal Court judge erred in her comparison of section 30 to sections 41 and 42. Specifically, she ignored several cases which show that these latter sections are to be broadly construed, and contemplate grounds of judicial review not expressly set out in their language (Commissioner’s memorandum at paras. 67 to 68, citing Clearwater v. Canada (Minister of Canadian Heritage), 177 F.T.R. 103 (F.C.), [1999] F.C.J. No. 1441 and Canada (Information Commissioner) v. Canada (Minister of National Defence), [1990] 3 F.C. 22 (T.D), [1990] F.C.J. No. 152).
[30] The Commissioner further submits that the Federal Court judge’s interpretation conflicts with the principle, enshrined in section 2 of the Act, that “decisions on the disclosure of government information should be reviewed independently of government” (Commissioner’s memorandum at para. 69, citing section 2 of the Act). The decision of the Federal Court judge would, if allowed to stand, permit government institutions to immunize themselves from judicial review (Commissioner’s memorandum at para. 72).
[31] The Commissioner argues that the Federal Court judge erred in her assessment of earlier Federal Court decisions. The Commissioner maintains that PSAC and Attorney General dealt with an entirely different set of facts (Commissioner’s memorandum at para. 78). Moreover, Attorney General was decided before subsection 4(2.1) was added to the Act in 2006, and the judge deciding PSAC did not consider this amendment, which requires government institutions to assist requesters and provide timely access to sought records (Commissioner’s memorandum at para. 80). Finally, the Commissioner argues that the Federal Court judge erred in failing to confront the statement made in External Affairs(I) to the effect that (per Jerome A.C.J. at para. 19):
… (w)here the application is based on an allegedly unauthorized extension taken under section 9, that enquiry consists of determining … whether it amounts to a deemed refusal. To perform that task, it is inescapable that the Court must be able to review the extension itself and reasons given therefor.
[32] The Commissioner also takes issue with the Federal Court judge’s suggestion that the Court may not be well-placed to determine whether an extension of time is reasonable. The Act empowers the Commissioner to investigate extensions of time and assemble a factual record that may be brought before the Federal Court for adjudication (Commissioner’s memorandum at paras. 84 and 88). Concerns that the courts should avoid “second-guessing” government institutions evince a concern that the courts will micro-manage extensions. This concern can be seen to be misplaced given the deferential standard to be applied (i.e. reasonableness) (Commissioner’s memorandum at para. 91).
[33] In this instance, the Commissioner says, the asserted extension was invalid and, for purposes of efficiency, this Court should exercise its discretion to rule on the matter. Because the evidentiary record is in writing, this Court is in no worse a position than the court below to decide this question.
[34] According to the Commissioner, the asserted extension was invalid on three accounts. First, it claims that the 230-day portion of the extension taken pursuant to paragraph 9(1)(a) was not taken in compliance with the statutory conditions, as DND could not show, as required by the provision in question, that meeting the request within the 30-day time limit would unreasonably interfere with its operations (Commissioner’s memorandum at paras. 96 to 98).
[35] Second, the Commissioner claims that the remaining period, being the 880 days asserted pursuant to paragraph 9(1)(b), was unreasonably long. DND’s initial explanation was that it had merely calculated the average DFAIT response time (110 days) and multiplied it by eight, because the requester had sought approximately eight times the number of records typically sent to DFAIT for consultation (Commissioner’s memorandum at para. 102). Such an exercise ignores many factors, such as the nature and accessibility of records (Commissioner’s memorandum at para. 103). Though DND later amended its answer to suggest that such factors were accounted for, it could not explain why the number had then remained exactly 880 days (Commissioner’s memorandum at para. 104). That the actual consultations took no longer than 173 days further supports the unreasonableness of this estimate (Commissioner’s memorandum at paras. 105 and 106).
[36] Third, the Commissioner claims generally that DND exercised its discretion unreasonably in asserting the extension it did. First, it failed to consider such relevant factors as its duty to assist under subsection 4(2.1) of the Act, the quasi-constitutional status of the Act, and relevant government policies (Commissioner’s memorandum at paras. 108 to 110, citing Treasury Board of Canada, Policy on Access to Information, sections 3.1, 6.2.1 and 6.2.2). Second, it considered irrelevant factors such as potential causes of delay and abdicated all responsibility by asserting that it had no control over the responses of other institutions (Commissioner’s memorandum at paras. 111 to 113).
POSITION OF THE INTERVENER
[37] In his submissions, the intervener undertook to illustrate that, in Ontario, the reasonableness of an extension to respond to an access to information request has proven to be a justiciable question (Intervener’s memorandum at para. 35). In support of this effort, the intervener canvassed the evidentiary factors considered in determining whether a government institution has proven its claim that a given extension was required for the reasons set out in the intervener’s enabling statute (Intervener’s memorandum at paras. 22 to 25).
[38] Though the intervener took no formal position on the disposition of the case at bar, he took issue with the duration of the extension claimed. In particular, he questioned the validity of the formula originally offered by DND in support of the 880-day portion of the extension taken (Intervener’s memorandum at paras. 9 and 23). More generally, the intervener noted that, in the Ontario setting, no extension exceeding 10 months has ever been found to be reasonable (Intervener’s memorandum at para. 25).
POSITION OF THE RESPONDENT
[39] DND argues that the Federal Court judge correctly construed the Act and properly assessed the case law, essentially for the reasons that she gave. Significant sections of the written submissions repeat the judge’s own language (see for instance DND’s memorandum at paras. 35 and 70).
[40] In addition to reiterating the Federal Court judge’s reasoning, DND argues that the Commissioner’s proposed interpretation of the Act is flawed. DND argues that, in reviewing the Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, it can be seen that the government was not prepared to impose a definitive time limit for extensions under subsection 9(1) of the Act (DND’s memorandum at para. 47). Furthermore, if Parliament had intended the Federal Court to have the jurisdiction to review extensions, it would have used more specific language rather than simply requiring that extensions be “reasonable … having regard to the circumstances” (DND’s memorandum at para. 48). For instance, it could have elected to provide for clear deadlines defined in days (ibidem). Finally, if Parliament had intended for deemed refusals under subsection 10(3) of the Act to include instances in which the government institution takes an unreasonable extension under section 9 or an extension beyond a defined length, it could have specified this (DND’s memorandum at para. 49).
[41] DND reiterates its argument, accepted by the Federal Court judge, that while the paragraphs of subsection 30(1) of the Act clearly distinguish between refusals and unreasonable extensions in setting out the grounds of complaint to the Commissioner, sections 41 and 42 are limited to refusals (DND’s memorandum at paras. 51 to 52). Had Parliament wished to grant the Federal Court jurisdiction to decide the reasonableness of extensions, it could have included in the judicial review section of the Act a provision like the one included in the complaint section (DND’s memorandum at para. 52).
[42] DND further argues that, contrary to some equivalent provincial statutory schemes, Parliament expressly limited the Commissioner to an ombudsman role, declining to vest her with the powers to compel compliance with the Act (DND’s memorandum at para. 55). The Commissioner’s findings are therefore not “decisions” that may be judicially reviewed. This undermines the Commissioner’s argument that, the moment she finds that an unreasonable extension has been asserted, she may initiate a judicial review application (DND’s memorandum at para. 56).
[43] Finally, DND argues that the Federal Court judge’s ruling is not inconsistent with the section 2 principle that decisions on the disclosure of government information should be reviewed independently of government. Simply put, this principle does not require that all decisions made under the Act be subject to judicial review (DND’s memorandum at para. 58).
[44] In the event that this Court finds that it does have jurisdiction to issue the declaration sought, DND argues that its extension was reasonable.
[45] DND insists that its only obligation under subsection 9(1) was to notify the requester that it would be taking an extension and to specify the length of the extension (DND’s memorandum at para. 61).
[46] DND argues that many variables were taken into account in determining the amount of time it took under paragraph 9(1)(a) of the Act, including previous experience with similar requests, sensitivity of the information and the current workload of the analyst assigned to the file (DND’s memorandum at para. 63). Furthermore, DND’s access to information unit had suffered a “major and unprecedented” software malfunction, which further affected the response time (ibidem).
[47] As to consultations, DND argues that previous experience and communication with the other institutions was taken into account (DND’s memorandum at para. 64). Estimates were particularly difficult to generate in respect of the DFAIT consultations, as the reactions of foreign governments often prove difficult to predict accurately (DND’s memorandum at paras. 65 to 67).
[48] DND emphasized that, under subsection 9(1) of the Act, it only has 30 days to determine the extension it will take (DND’s memorandum at para. 68). Furthermore, it cannot change that estimate. It is therefore reasonable to consider potential causes of delay (ibidem). Furthermore, that the consultations ultimately took less time than expected is irrelevant to whether, at the time the extension was asserted, the duration selected was reasonable (DND’s memorandum at para. 69).
[49] In reply to the submissions made by the intervener, DND outlined the differences between the Act and the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, emphasizing that the latter gives the provincial Commissioner an adjudicative role, while the former gives the federal Commissioner an investigative one (Respondent’s reply memorandum at paras. 15 to 18). With respect to the intervener’s view that extensions beyond 10 months would require an exceptional justification, DND submits that the intervener has no expertise or experience in cases such as this one, which involves military assets and consultation with foreign governments (Respondent’s reply memorandum at paras. 25 and 26).
ANALYSIS
Standard of Review
[50] In this case, this Court is determining an appeal of a decision by the Federal Court to dismiss an application for judicial review brought by the Commissioner under paragraph 42(1)(a).
[51] The appeal raises two issues. The first is whether the Federal Court had jurisdiction under section 42 of the Act to hear the Commissioner’s application. The second, which must be answered only if the first question is answered in the affirmative, is whether the extension taken by DND was valid.
[52] The first issue is preliminary to any consideration of the underlying application, concerning whether the preconditions for a judicial review are met. As such, this question was first decided by the Federal Court, and never arose before the administrative decision-maker in question. Therefore, on appeal, we employ the appellate standard of review in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen], not the administrative standard of review in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[53] Whether the preconditions for a judicial review had been met turns on a pure question of statutory construction, i.e. when an extension is taken by a government institution, does the Act (specifically sections 41 and 42 when read with section 7 and subsections 9(1) and 10(3)) give the Federal Court jurisdiction to assess the legal validity of the extension? The Federal Court answered this in the negative. As a determination on a question of law, this holding stands within the appellate framework to be reviewed on the standard of correctness: Housen, supra at paras. 8 and 9.
[54] If I hold that the section 42 preconditions have been met in this case, I must examine whether the extension taken by DND in this case was valid. The Federal Court judge did not rule on that question. Therefore, consistent with the approach set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 45 to 47, I must select the appropriate standard of review and then apply it myself.
[55] Like the parties, I accept that this second question should be reviewed on a standard of reasonableness. I would add that, because the decision under review is essentially fact and policy driven, the range of possible acceptable outcomes or the margin of appreciation to be given to DND is broad: Canada (Minister of Transport, Infrastructure and Communities) v. Jagjit Singh Farwaha, 2014 FCA 56 at paras. 91 to 92; Canada (Attorney General) v. Abraham, 2012 FCA 266, [2012] F.C.J. No. 1324 at para. 44.
Are the preconditions for a judicial review under section 42 met?
[56] With respect to the first issue, the determinative holding made by the Federal Court judge appears at paragraph 66 of her reasons:
… subsection 10(3) provides that where the records are not provided within the time limits set out in this act, the head of the institution is deemed to have refused to give access. In other words, where there is no outright notice of refusal, if the requested records are not provided within 30 days or within the period of time claimed as an extension under section 9, there is a deemed refusal.
Stated conversely and perhaps more accurately, the Federal Court judge held that so long as there is compliance with the time extension taken, there can be no deemed refusal pursuant to subsection 10(3) regardless of the reasonableness of the extension, and therefore no right of judicial review arises in the circumstances of this case.
[57] As will be seen, the reading proposed by the Federal Court judge is consistent with a number of Federal Court decisions (X v. Canada (Minister of National Defence), [1991] 1 F.C. 670, 41 F.T.R. 73 at paras. 8 and 10 [X]; Attorney General at paras. 25 to 27, citing X at para. 8; PSAC at para. 21, citing Attorney General at para. 25). There are, however, other cases from the same court which go the other way (External Affairs(I) at para. 19 and External Affairs(II) at para. 9).
Statutory Construction
[58] I first turn to the issue of statutory construction. In my view, a reading of subsection 10(3) which would prevent judicial review of an extension, as is being proposed here, falls short of what Parliament intended. The correct approach to statutory interpretation requires that courts read “the words of an Act … in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Thibodeau v. Air Canada, 2014 SCC 67, [2014] S.C.J. No. 67 at para. 112).
[59] Part of the statutory scheme are the “time limits set out” in the Act, which, when breached, give rise to a deemed refusal pursuant to subsection 10(3). There are only two such limits: the 30-day time limit that arises by operation of section 7 following a request for access, and the extended time limit that arises as a result of a notice of extension issued pursuant to section 9. Based on the Federal Court judge’s interpretation, the length of this last time limit would rest exclusively in the hands of the government institution asserting it, and escape judicial review regardless of its duration.
[60] For the purpose of applying subsection 10(3), construing subsection 9(1) as allowing for whatever period of time the institution may wish to take reads out of the Act the requirement that the extension be “reasonable … having regard to the circumstances” and the criteria set out in paragraphs 9(1)(a) and 9(1)(b). Moreover, the extended “time limit” that the Federal Court judge accepts as falling within the “time limits set out in [the] Act” (Reasons at para. 66) is not a time limit at all. If a government institution is free to choose the deadline of its choice, without regard to the statutory conditions set out in subsection 9(1), there are no limits on the deadline it may choose.
[61] The Federal Court judge’s interpretation is not aided by her comparison of section 30 of the Act to sections 41 and 42. According to her, had Parliament intended unreasonable time limits to be judicially reviewed, it would have set this out expressly, as it did in subsection 30(1) with respect to complaints. The suggestion as I understand it is that if unreasonable extensions could give rise to deemed refusals pursuant to subsection 10(3) as the Commissioner contends, there would be no need for paragraph 30(1)(c) (subsection 30(1) is reproduced in part, for ease of reference):
Receipt and Investigation of Complaints
Réception des plaintes et enquêtes
30. (1) Subject to this Act, the Information Commissioner shall receive and investigate complaints
30. (1) Sous réserve des autres dispositions de la présente loi, le Commissaire à l’information reçoit les plaintes et fait enquête sur les plaintes:
(a) from persons who have been refused access to a record requested under this Act or a part thereof;
(a) déposées par des personnes qui se sont vu refuser la communication totale ou partielle d’un document qu’elles ont demandé en vertu de la présente loi;
…
[…]
(c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable;
(c) déposées par des personnes qui ont demandé des documents dont les délais de communication ont été prorogés en vertu de l’article 9 et qui considèrent la prorogation comme abusive;
…
[…]
[My emphasis]
[62] This reasoning gives rise to two difficulties. First, subsection 10(3) makes it clear that a deemed refusal occurs where a government institution has missed either of “the time limits set out in [the] Act”. It is therefore not useful to resort to inferences to elucidate the meaning of a deemed refusal for purposes of applying sections 41 and 42 and particularly problematic when, as here, doing so would lead to a meaning that is different from what is expressly stated in the Act.
[63] Second, the reasoning according to which paragraph 30(1)(c) would be rendered meaningless does not account for the situation where a requester receives a notice of extension within the initial 30-day time period. In these circumstances, paragraph 30(1)(c) provides a requester with the same immediate right to invoke the assistance of the Commissioner as he or she would have if confronted with an outright refusal. I stress in this respect, and in the context of the appeal generally, that timely access is a constituent part of the right of access (see subsection 4(2.1) of the Act).
The Federal Court Jurisprudence
[64] The Federal Court judge’s conclusion that “there is no footing to argue that the jurisprudence is inconsistent” is unexplained (Reasons at para. 101). As noted earlier, there are at least two decisions that take the opposite view. In External Affairs(I)¸ Jerome A.C.J. held that, where an application under section 42 of the Act is based on an allegedly unjustified extension under section 9, the court is required to review the extension itself and decide whether it was justified (at para. 19). In External Affairs(II), Muldoon J. came to the same conclusion, holding that, “in order to show that extensions are for ‘a reasonable period of time’… the department must state cogent, genuine reasons for the extension, and for its length” (at para. 9).
[65] Though the Federal Court judge adopts the reasoning of Beaudry J. in PSAC (Reasons at paras. 99 to 101, citing PSAC at paras. 21 to 24), who declined to follow External Affairs(I) and (II), his decision has no more precedential value than the other two. It was of course open to the Federal Court judge to adopt one position and reject the other, subject to explaining her reasons for doing so (Apotex Inc. v. Allergan Inc., 2012 FCA 308, 105 C.P.R. (4th) 371 [Allergan] at paras. 48 and 50; Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 250 at paras. 112 to 115).
[66] For reasons already explained, PSAC ought not to be followed because the reasoning advanced in that case does not confront or take into account the requirement that a valid extension must comply with the statutory conditions set out in subsection 9(1). The same observation extends to X and Attorney General.
Other grounds
[67] I do not accept DND’s attempts to support the interpretation of the Federal Court judge on other grounds. Specifically, it does not follow that specific time limits defined in days would have been set out in the Act had Parliament intended that extensions be judicially reviewed. The concept of “reasonableness” embodied in subsection 9(1) is a core legal standard which courts are regularly called upon to apply. There is no reason to believe that this standard is not appropriate or workable in assessing the legality of extensions taken pursuant to subsection 9(1).
[68] Similarly, the excerpts relied upon by DND from the Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs are of no assistance (Appeal Book, Vol. II, Tab 41):
I find it rather difficult to set a definitive period of time within which the head of the institution must give access to the record. Basically, if no notice is given, the request is deemed refused and there are appeals to the Information Commissioner and from the Information Commissioner to the Court. It is difficult to say when you have a request for a whole flood of material … the amount of time required to go through that is rather large, so it is rather difficult to give the undertaking that the answer must be given within a certain period of time. That is why we are trying to build into the clause the type of amendment recommended this morning, ensuring that notice be given to the Information Commissioner, which always gives the Information Commissioner the opportunity to ask questions.
[69] I do not read this passage as suggesting that the Federal Court was to have no jurisdiction over the extensions taken under section 9 (DND’s memorandum at para. 47). Rather, it is clear when regard is had to the passage when read in its fuller context that the only proposition being rejected is the one which prompted this response, i.e. limiting the extensions permissible by applying a firm 30-day cap.
[70] Moreover, the fact that the Commissioner’s investigative findings made pursuant to subsection 37(1) are not subject to judicial review cannot be set up as a bar against the Commissioner’s entitlement to bring an application for judicial review upon finding that an extension taken is unreasonable (DND’s memorandum at para. 56). In that context, the decision under review is the one taken by the government institution to extend the time limit, not the findings made by the Commissioner in respect of that decision. Indeed, it is difficult to visualize a scheme whereby the Commissioner would make a decision and then seek its judicial review.
The Correct Interpretation
[71] In my view, the correct construction is the one offered by the Commissioner. Section 7 of the Act requires a government institution to respond to an information request within 30 days. This requirement is subject to several exceptions, one of which is the power which may be exercised by a government institution, pursuant to section 9 of the Act, to extend the time.
[72] A government institution may avail itself of this power subject to certain conditions. One such condition is that the period taken be reasonable when regard is had to the circumstances set out in paragraphs 9(1)(a) and/or 9(1)(b). If this condition is not satisfied, the time is not validly extended with the result that the 30-day time limit imposed by operation of section 7 remains the applicable limit.
[73] Construing subsection 10(3) in context and in light of what it says, I conclude that a deemed refusal arises whenever the initial 30-day time limit has expired without access being given, in circumstances where no legally valid extension has been taken. It follows that a right to judicially review the validity of an extension arises pursuant to sections 41 and/or 42 upon the expiration of the 30-day time limit, subject of course to a complaint being filed and an investigation report being completed (compare Statham v. Canadian Broadcasting Corporation, 2010 FCA 315 at para. 64).
[74] In the present case, I conclude that the Federal Court had the jurisdiction to entertain the Commissioner’s application for judicial review of the extension taken by DND and to go on to consider the validity of the extension of time asserted by DND. This is the issue to which I now turn.
Was the extension of time asserted by DND valid?
[75] The Commissioner in insisting on a declaration being issued is seeking nothing more than general guidance for future cases. Although the period taken by DND in this case appears long, a large number of documents was involved and extensive consultations were required.
[76] That said, it can usefully be said that it is not enough for a government institution to simply assert the existence of a statutory justification for an extension and claim an extension of its choice. An effort must be made to demonstrate the link between the justification advanced and the length of the extension taken. In the case of paragraph 9(1)(a), this will mean not only demonstrating that a large number of documents are involved, but that the work required to provide access within any materially lesser period of time than the one asserted would interfere with operations. The same type of rational linkage must be made pursuant to paragraph 9(1)(b) with respect to necessary consultations.
[77] I note that the English text of subsection 9(1)(a) provides that a government institution is entitled to an extension when compliance with a shorter delay “would unreasonably interfere with the operations” whereas the French text uses the words “entraverait de façon sérieuse le fonctionnement de l’institution”. Similarly, the notion of reasonableness is incorporated in the English text of subsection 9(1)(b), but the French text contemplates that an extension is warranted when compliance “rendrait pratiquement impossible l’observation du délai”. Finally, the introductory words of subsection 9(1) speak of “a reasonable period of time, having regard to the circumstances” whereas the French text reads “d’une période que justifient les circonstances”.
[78] Read together, what these two texts contemplate is that the extension be reasonable or justified in the circumstances and that a demonstration be made that unless the extension is taken, providing access will result in unreasonable or undue interference with the “operations of the government institution” in the case of paragraph 9(1)(a), and that it is not reasonable, or practically possible, to expect that the necessary consultations can be completed in the case of paragraph 9(1)(b).
[79] It would not be opportune or useful to say more than is necessary to dispose of the present case. It suffices to say that a government institution confronted with a request involving a great number of documents and/or necessitating broad consultation must make a serious effort to assess the required duration, and that the estimated calculation be sufficiently rigorous, logic and supportable to pass muster under reasonableness review.
[80] In the case at bar, DND originally claimed to have estimated the time taken under paragraph 9(1)(b) (880 days) by simply dividing the number of pages requested by the number of pages involved in the average DFAIT consultation, and applying the resulting quotient (8) as a multiplier against the average DFAIT consultation time (110 days). Recognizing that the exercise will always contemplate a projection, this type of formula has on the face of it a deficient logic and falls short of demonstrating that a genuine attempt was made to assess the required duration. Though DND later claimed that other variables were taken into account, it could not explain why, if such other variables were accounted for, they had no impact whatsoever on the amount of time required under the formula disclosed in its original explanation.
[81] This type of perfunctory treatment of the matter shows that DND acted as though it was accountable to no one but itself in asserting its extension. Its treatment of the matter falls short of establishing that a serious effort was made to assess the duration of the extension. As such, the extension taken by DND does not meet the requirements of subsection 9(1). This suffices to establish the Commissioner’s entitlement to the declaration sought.
DISPOSITION
[82] For the foregoing reasons, I would allow the appeal and giving the judgment which the Federal Court judge should have given, I would declare DND to have entered into a state of deemed refusal pursuant to subsection 10(3) of the Act on March 5, 2011, upon the expiration of the 30-day time limit set out in section 7 of the Act. As no costs were sought, none are awarded.
“Marc Noël”
Chief Justice
“I agree
David Stratas J.A.”
“I agree
A.F. Scott J.A.”
ANNEX
Purpose
Objet
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
2. (1) La présente loi a pour objet d’élargir l’accès aux documents de l’administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
…
[…]
Responsibility of government institutions
Responsable de l’institution fédérale
4. (2.1) The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.
4. (2.1) Le responsable de l’institution fédérale fait tous les efforts raisonnables, sans égard à l’identité de la personne qui fait ou s’apprête à faire une demande, pour lui prêter toute l’assistance indiquée, donner suite à sa demande de façon précise et complète et, sous réserve des règlements, lui communiquer le document en temps utile sur le support demandé.
…
[…]
Request for access to record
Demandes de communication
6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.
6. La demande de communication d’un document se fait par écrit auprès de l’institution fédérale dont relève le document; elle doit être rédigée en des termes suffisamment précis pour permettre à un fonctionnaire expérimenté de l’institution de trouver le document sans problèmes sérieux.
Notice where access requested
Notification
7. Where access to a record is requested under this Act, the head of the government institution to which the request is made shall, subject to sections 8, 9 and 11, within thirty days after the request is received,
7. Le responsable de l’institution fédérale à qui est faite une demande de communication de document est tenu, dans les trente jours suivant sa réception, sous réserve des articles 8, 9 et 11:
(a) give written notice to the person who made the request as to whether or not access to the record or a part thereof will be given; and
a) d’aviser par écrit la personne qui a fait la demande de ce qu’il sera donné ou non communication totale ou partielle du document;
(b) if access is to be given, give the person who made the request access to the record or part thereof.
b) le cas échéant, de donner communication totale ou partielle du document.
…
[…]
Extension of time limits
Prorogation du délai
9. (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if
9. (1) Le responsable d’une institution fédérale peut proroger le délai mentionné à l’article 7 ou au paragraphe 8(1) d’une période que justifient les circonstances dans les cas où:
(a) the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution,
a) l’observation du délai entraverait de façon sérieuse le fonctionnement de l’institution en raison soit du grand nombre de documents demandés, soit de l’ampleur des recherches à effectuer pour donner suite à la demande;
(b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or
b) les consultations nécessaires pour donner suite à la demande rendraient pratiquement impossible l’observation du délai;
(c) notice of the request is given pursuant to subsection 27(1)
c) avis de la demande a été donné en vertu du paragraphe 27(1).
by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request within thirty days after the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension.
Dans l’un ou l’autre des cas prévus aux alinéas a), b) et c), le responsable de l’institution fédérale envoie à la personne qui a fait la demande, dans les trente jours suivant sa réception, un avis de prorogation de délai, en lui faisant part de son droit de déposer une plainte à ce propos auprès du Commissaire à l’information; dans les cas prévus aux alinéas a) et b), il lui fait aussi part du nouveau délai.
Notice of extension to Information Commissioner
Avis au Commissaire à l’information
(2) Where the head of a government institution extends a time limit under subsection (1) for more than thirty days, the head of the institution shall give notice of the extension to the Information Commissioner at the same time as notice is given under subsection (1).
(2) Dans les cas où la prorogation de délai visée au paragraphe (1) dépasse trente jours, le responsable de l’institution fédérale en avise en même temps le Commissaire à l’information et la personne qui a fait la demande.
…
[…]
Deemed refusal to give access
Présomption de refus
…
[…]
10. (3) Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.
10. (3) Le défaut de communication totale ou partielle d’un document dans les délais prévus par la présente loi vaut décision de refus de communication.
…
[…]
Receipt and investigation of complaints
Réception des plaintes et enquêtes
30. (1) Subject to this Act, the Information Commissioner shall receive and investigate complaints
30. (1) Sous réserve des autres dispositions de la présente loi, le Commissaire à l’information reçoit les plaintes et fait enquête sur les plaintes:
(a) from persons who have been refused access to a record requested under this Act or a part thereof;
a) déposées par des personnes qui se sont vu refuser la communication totale ou partielle d’un document qu’elles ont demandé en vertu de la présente loi;
(b) from persons who have been required to pay an amount under section 11 that they consider unreasonable;
b) déposées par des personnes qui considèrent comme excessif le montant réclamé en vertu de l’article 11;
(c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable;
c) déposées par des personnes qui ont demandé des documents dont les délais de communication ont été prorogés en vertu de l’article 9 et qui considèrent la prorogation comme abusive;
…
[…]
37. (1) If, on investigating a complaint in respect of a record under this Act, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has control of the record with a report containing
37. (1) Dans les cas où il conclut au bien-fondé d’une plainte portant sur un document, le Commissaire à l’information adresse au responsable de l’institution fédérale de qui relève le document un rapport où :
(a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; and
a) il présente les conclusions de son enquête ainsi que les recommandations qu’il juge indiquées;
(b) where appropriate, a request that, within a time specified in the report, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
b) il demande, s’il le juge à propos, au responsable de lui donner avis, dans un délai déterminé, soit des mesures prises ou envisagées pour la mise en oeuvre de ses recommandations, soit des motifs invoqués pour ne pas y donner suite.
Review by Federal Court
Révision par la Cour fédérale
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
41. La personne qui s’est vu refuser communication totale ou partielle d’un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l’information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l’expiration du délai, le proroger ou en autoriser la prorogation.
Information Commissioner may apply or appear
Exercice du recours par le Commissaire, etc.
42. (1) The Information Commissioner may
42. (1) Le Commissaire à l’information a qualité pour:
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;
a) exercer lui-même, à l’issue de son enquête et dans les délais prévus à l’article 41, le recours en révision pour refus de communication totale ou partielle d’un document, avec le consentement de la personne qui avait demandé le document;
(b) appear before the Court on behalf of any person who has applied for a review under section 41; or
b) comparaître devant la Cour au nom de la personne qui a exercé un recours devant la Cour en vertu de l’article 41;
(c) with leave of the Court, appear as a party to any review applied for under section 41 or 44.
c) comparaître, avec l’autorisation de la Cour, comme partie à une instance engagée en vertu des articles 41 ou 44.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
A-163-14
STYLE OF CAUSE:
INFORMATION COMMISSIONER OF CANADA v. MINISTER OF NATIONAL DEFENCE AND INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
PLACE OF HEARING:
OTTAWA, ONTARIO
DATE OF HEARING:
NOVEMBER 19, 2014
REASONS FOR JUDGMENT BY:
NOËL C.J.
CONCURRED IN BY:
STRATAS J.A.
SCOTT J.A.
DATED:
MARCH 3, 2015
APPEARANCES:
Marlys Edwardh
Daniel Sheppard
FOR THE APPELLANT
Diane Therrien
Michael De Santis
FOR THE APPELLANT
Sharon Johnston
FOR THE RESPONDENT
William S. Challis
FOR THE INTERVENER
SOLICITORS OF RECORD:
Sack Goldblatt Mitchell LLP
Toronto, Ontario
FOR THE APPELLANT
Office of the Information Commissioner of Canada
Gatineau, Québec
FOR THE APPELLANT
William F. Pentney
Deputy Attorney General of Canada
FOR THE RESPONDENT
Information and Privacy Commissioner of Ontario
Toronto, Ontario
FOR THE INTERVENER
Monday, March 16, 2015
Thursday, March 12, 2015
Ishaq v. Canada (Citizenship and Immigration) Date: 20150206 Docket: T-75-14 Citation: 2015 FC 156 copy
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/108049/index.do?r=AAAAAQANWnVuZXJhIElzaGFxLAAAAAAB
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) of the Regulations, it is necessary to determine which prevails. Subordinate legislation cannot conflict with its parent legislation (Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 at 38, 88 DLR (4th) 1), but here there is a conflict between the Regulations and the Policy, both of which are subordinate to the same Act. However, regulations enacted by the Governor in Council generally have a higher legal status than guidelines and policies (Thamotharem at paragraph 98).
[56] It is also significant that it was the Governor in Council, not the Minister, to whom Parliament expressly granted authority pursuant to section 27(f) to (h) of the Act to make regulations concerning “the procedures to be followed by citizenship judges in the performance of their duties”, the “ceremonial procedures to be followed by citizenship judges”, and “the taking of the oath of citizenship”. Although that does not preclude the possibility that the Minister could assign duties to citizenship judges in those areas, general provisions typically yield to specific ones in the event of a conflict (Lalonde v Sun Life Assurance Co of Canada, [1992] 3 SCR 261 at 278-279, 143 NR 287; National Bank Life Insurance v Canada, 2006 FCA 161 at paragraphs 9-10, 381 NR 117). Thus, 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.
[57] Accordingly, I find that the Policy is inconsistent with the duty given to citizenship judges by the Regulations and is therefore invalid. On this basis alone, therefore, the application for judicial review should succeed. However, it is useful to address some of the other issues noted above.
C. Is the Policy otherwise inconsistent with applicable legislation or regulations?
[58] Sections 19(1) and 21 of the Regulations provide as follows:
19. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who has been granted citizenship under subsection 5(1) of the Act shall take the oath of citizenship by swearing or solemnly affirming it before a citizenship judge.
19. (1) Sous réserve du paragraphe 5(3) de la Loi et de l’article 22 du présent règlement, la personne qui s’est vu attribuer la citoyenneté en vertu du paragraphe 5(1) de la Loi doit prêter le serment de citoyenneté par un serment ou une affirmation solennelle faite devant le juge de la citoyenneté.
…
[…]
21. Subject to section 22, a person who takes the oath of citizenship pursuant to subsection 19(1) or 20(1) shall, at the time the person takes it, sign a certificate in prescribed form certifying that the person has taken the oath, and the certificate shall be countersigned by the citizenship officer or foreign service officer who administered the oath and forwarded to the Registrar.
21. Sous réserve de l’article 22, la personne qui prête le serment de citoyenneté aux termes des paragraphes 19(1) ou 20(1) doit, au moment de la prestation du serment, signer un certificat selon la formule prescrite pour certifier qu’elle a prêté le serment, et le certificat doit être contresigné par l’agent de la citoyenneté ou l’agent du service extérieur qui a fait prêter le serment et transmis au greffier.
[59] Although the Policy does not directly contradict these provisions of the Regulations, the requirement imposed by the Policy that a candidate for citizenship be seen taking the oath does appear to be superfluous.
[60] Subsection 19(1) of the Regulations requires that a candidate take the oath of citizenship “by swearing or solemnly affirming it before a citizenship judge”; it does not require that there be visual confirmation that the oath was said aloud. This is confirmed by the following testimony during cross-examination of the Respondent’s representative, Ms Cronier-Gabel, who is the Assistant Director of Citizenship Program Delivery at CIC:
Q. But there wasn’t a specific provision about witnessing the oath being taken and seeing people take the oath. That was added in in December of 2011; is that correct?
A. That’s right.
Q. Right. So the difference was that prior to December 2011 the requirement was the judge be satisfied that people had taken the oath and in December 2011 the policy was changed to require the judge to witness the person taking the oath as opposed to hear the person taking the oath, for example.
A. That’s right.
Q. …And you don’t know of any legislative authority for that requirement; is that correct?
A. That’s correct.
Q. …since that time, according to this policy, if a person is not seen taking the oath by some official, their certificate can be removed…from the pile; is that correct?
A. That’s correct. [Emphasis added]
[61] Indeed, as noted above, any requirement that a candidate for citizenship actually be seen taking the oath would make it impossible not just for a niqab-wearing woman to obtain citizenship, but also for a mute person or a silent monk.
[62] Section 21 of the Regulations requires that candidates sign a certificate in prescribed form certifying that the person has taken the oath or affirmation of citizenship. That form contains the exact same language as set forth in the schedule to the Act. According to section 16.13 of the Manual, after candidates have taken the oath or affirmation of citizenship in the formal part of the ceremony as contemplated by section 16.7 of the Manual, and received their certificates of citizenship as contemplated by section 16.8, “they go to the certificate table to sign the Oath of Citizenship form… [and] then return to their seats.” I agree with the Applicant that it is the candidate’s signature beneath this 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 that is required by section 24 of the Act.
[63] The Applicant also relies upon paragraphs 3(2)(c) and 3(2)(f) of the Canadian Multiculturalism Act, RSC 1985, c 24 (4th Supp) [CMA] to support her argument that the Policy is inconsistent with applicable legislation or regulations. These paragraphs provide that:
3. (2) It is further declared to be the policy of the Government of Canada that all federal institutions shall
3. (2) En outre, cette politique impose aux institutions fédérales l’obligation de :
…
…
(c) promote policies, programs and practices that enhance the understanding of and respect for the diversity of the members of Canadian society;
c) promouvoir des politiques, programmes et actions permettant au public de mieux comprendre et de respecter la diversité des membres de la société canadienne;
…
…
(f) generally, carry on their activities in a manner that is sensitive and responsive to the multicultural reality of Canada.
f) généralement, conduire leurs activités en tenant dûment compte de la réalité multiculturelle du Canada.
[64] These provisions are incorporated into the Manual in section 3.4, which provides that: “Any comments made and actions taken at a citizenship ceremony must respect and promote a better understanding and appreciation of Canada’s diverse cultures.”
[65] 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.
D. If the Policy is otherwise unlawful, should the Charter issues be decided?
[66] In circumstances where a constitutional case can be decided on a non-constitutional ground, Peter Hogg has advised that “[t]he course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided” (Peter W Hogg, Constitutional Law of Canada, 5th ed, vol 2 (Toronto: Thomson Reuters, 2007) (loose-leaf update to 2014), ch 59 at 59.5 [Hogg]). The Supreme Court has also cautioned that “unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen” (Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 SCR 97 at paragraph 9, 124 DLR (4th) 129).
[67] Although there may be cases where it is appropriate to decide the constitutional issues raised by a case (Law Society of Upper Canada v Skapinker, [1984] 1 SCR 357 at 383-384, 9 DLR (4th) 161; Hogg, vol 2, ch 59 at 59.5), this case is not among them. While the evidentiary record was adequate to decide the matter, it was not voluminous and the hearing itself was relatively brief. Thus, judicial economy is not a major consideration, and there is no compelling need for certainty since the Policy will be set aside regardless of its constitutionality. Therefore, it would be imprudent to decide the Charter issues that arose in this application and I decline to do so.
VI. Conclusion
[68] For the reasons stated above, the Applicant’s application is allowed. 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, it is unlawful.
[69] Accordingly, this Court hereby declares that: Sections 6.5.1 to 6.5.3 of the Policy, as well as the second paragraph of section 13.2 of the Manual and the reference to “those wearing a full or partial face covering that now is the time to remove it” in section 16.7 of the Manual, are unlawful. If the Policy has been updated from the Manual being assessed in this application, this order shall extend to any similar directives in the most up-to-date version of the Manual.
[70] The Applicant has requested her costs of this application in her prayer for relief, and as she has been substantially successful, I award costs to the Applicant in the amount of $2,500.00.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is granted and allowed;
2. The portions of the Policy and Manual that require citizenship candidates to remove face coverings or be observed taking the oath are unlawful. Specifically, sections 6.5.1 to 6.5.3 of the Policy, as well as the second paragraph of section 13.2 of the Manual and the reference to “those wearing a full or partial face covering that now is the time to remove it” in section 16.7 of the Manual, are unlawful; and,
3. The Applicant shall have her costs of this application fixed in the amount of $2,500.00.
"Keith M. Boswell"
Judge
ANNEX A
6.5. Administration of the oath of citizenship
This is a solemn and significant part of the citizenship ceremony. As per subsection 19(1) of the Regulations, subject to subsection 5(3) of the Act and section 22 of the Regulations, a person who has been granted citizenship under subsection 5(1) of the Act shall take the Oath of Citizenship by swearing, or solemnly affirming before a citizenship judge. Subsection 19(2) of the Regulations indicates that unless the Minister otherwise directs, the Oath of Citizenship shall be taken at a citizenship ceremony.
Candidates for citizenship who are 14 years of age and older must take the oath of citizenship.
6.5.1. Witnessing the oath
It is the responsibility of the presiding official and the clerk of the ceremony to ensure that all candidates are seen taking the Oath of Citizenship.
To facilitate the witnessing of the oath taking by CIC officials, all candidates for citizenship are to be seated together, as close to the presiding official as possible.
• For larger ceremonies (50 or more candidates), additional CIC officials will be required to assist in the witnessing of the oath. The CIC officials will need to observe the taking of the oath by walking the aisles.
Candidates wearing face coverings are required to remove their face coverings for the oath taking portion of the ceremony.
6.5.2. Candidates not seen taking the oath
In some circumstances, it is difficult to ascertain whether candidates are taking the oath (sometimes due to a face covering). When a candidate is not seen taking the oath by a presiding official or CIC official(s), the clerk of the ceremony must be notified immediately following the oath taking portion.
• The candidate’s certificate is to be removed from the pile.
• The candidate’s name is NOT to be called and the certificate is NOT to be presented.
Note: If there is a minor child associated with the application of the candidate who is not seen taking the oath, that minor child will not be called nor will he or she receive a citizenship certificate, unless the child has another parent who is already a Canadian citizen, or who takes the oath on the same day. This will have to be ascertained following the ceremony.
Immediately following the ceremony, the clerk will approach the candidate and explain that the candidate:
• was not seen taking the oath (if this is due to not removing a face covering, it must be explained);
• will not receive his/her citizenship certificate that day; and
• can return for the next available citizenship ceremony where they will need to be seen taking the oath (and if applicable, remove their face covering during oath taking).
6.5.3. Candidate returns for another ceremony
Should the candidate accept to return to take the oath at a future ceremony, the candidate will:
• be scheduled to attend the next available citizenship ceremony;
• receive another notice to appear;
• need to be seen taking the Oath of Citizenship;
• be reminded that if wearing a face covering, it will need to be removed for the oath taking portion of the ceremony.
When the candidate attends the second ceremony, 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.
Note: The opportunity to return to take the oath at another citizenship ceremony applies only once.
6.5.4. Candidate refuses to return for another ceremony
Should the candidate refuse to take the Oath of Citizenship at a future ceremony, the clerk must advise the candidate that:
• he/she will not become a citizen or receive his/her certificate of citizenship;
• he/she can chose [sic] to withdraw his/her application for citizenship or his/her file will be closed permanently;
• should he/she wish to become a Canadian citizen in the future, he/she will have to reapply.
Local offices must follow standard procedures for application withdrawal or closing a file. In the section “other reasons” in GCMS, the CIC official indicates that the reason is due to: refusal to take the oath or to remove a face covering during the oath taking.
If there is a minor child associated with this application, standard procedures apply.
6.5.5. Candidate advises CIC official, prior to the ceremony, of refusal to take the oath
When a candidate advises CIC officials, prior to the ceremony, that he/she will not take the oath of citizenship or sign the Oath of Citizenship form (e.g. for religious reasons or not wishing to swear allegiance to Her Majesty Queen Elizabeth the Second):
• The citizenship officer must remind the candidate that under the Citizenship Act and Regulations the oath is a mandatory requirement to become a canadian [sic] citizen.
• Should the candidates decides [sic] to proceed with the ceremony, CIC officials should ensure that this candidate is, in fact, seen taking the oath. See section 6.5.1.
• The candidates may choose to withdraw his/her application for Canadian citizenship. In that case, he or she will not become a canadian [sic] citizen and the local office will follow the procedure for file closure.
Also see section 13.2, Full or partial face coverings. [Emphasis in original]
ANNEX B
Citizenship Act, RSC 1985, c C-29
24. Where a person is required under this Act to take the oath of citizenship, the person shall swear or affirm in the form set out in the schedule and in accordance with the regulations.
24. Le serment de citoyenneté est prêté dans les termes prescrits par l’annexe et selon les modalités fixées par règlement.
…
…
26. … (2) In addition to his other duties set out in this Act, a citizenship judge shall perform such other duties as the Minister prescribes for carrying into effect the purposes and provisions of this Act.
26. […] (2) En plus des fonctions que lui attribue la présente loi, le juge de la citoyenneté s’acquitte de celles que lui confie le ministre en vue de la mise en oeuvre de la présente loi.
27. The Governor in Council may make regulations
27. Le gouverneur en conseil peut, par règlement :
…
…
(f) prescribing the procedures to be followed by citizenship judges in the performance of their duties;
f) fixer la procédure à suivre par le juge de la citoyenneté;
(g) prescribing the ceremonial procedures to be followed by citizenship judges;
g) prévoir le cérémonial à suivre par le juge de la citoyenneté;
(h) respecting the taking of the oath of citizenship;
h) régir la prestation du serment de citoyenneté;
…
…
Citizenship Regulations, SOR/93-246
17. (1) The ceremonial procedures to be followed by citizenship judges shall be appropriate to impress on new citizens the responsibilities and privileges of citizenship and, without limiting the generality of the foregoing, a citizenship judge shall, during a ceremony held for the presentation of certificates of citizenship,
17. (1) Le cérémonial à suivre par les juges de la citoyenneté doit être de nature à sensibiliser les nouveaux citoyens aux responsabilités et privilèges attachés à la citoyenneté. Le juge de la citoyenneté doit, notamment, lors d’une cérémonie de remise de certificats de citoyenneté :
(a) emphasize the significance of the ceremony as a milestone in the lives of the new citizens;
a) souligner l’importance de la cérémonie en tant qu’une étape clé dans la vie des nouveaux citoyens;
(b) subject to subsection 22(1), administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof;
b) sous réserve du paragraphe 22(1), faire prêter le serment de citoyenneté avec dignité et solennité, tout en accordant la plus grande liberté possible pour ce qui est de la profession de foi religieuse ou l’affirmation solennelle des nouveaux citoyens;
(c) personally present certificates of citizenship, unless otherwise directed by the Minister; and
c) remettre personnellement les certificats de citoyenneté, à moins de directives contraires du ministre;
(d) promote good citizenship, including respect for the law, the exercise of the right to vote, participation in community affairs and intergroup understanding.
d) promouvoir un bon sens civique, notamment le respect de la loi, l’exercice du droit de vote, la participation aux affaires de la collectivité et la compréhension entre les groupes.
(2) Unless the Minister otherwise directs, a certificate of citizenship issued to a person who has been granted citizenship under subsection 5(l) of the Act shall be presented at a ceremony described in subsection (l).
(2) À moins de directives contraires du ministre, le certificat de citoyenneté délivré au nom d’une personne qui s’est vu attribuer la citoyenneté en vertu du paragraphe 5(1) de la Loi doit lui être remis lors de la cérémonie visée au paragraphe (1).
…
…
19. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who has been granted citizenship under subsection 5(1) of the Act shall take the oath of citizenship by swearing or solemnly affirming it before a citizenship judge.
19. (1) Sous réserve du paragraphe 5(3) de la Loi et de l’article 22 du présent règlement, la personne qui s’est vu attribuer la citoyenneté en vertu du paragraphe 5(1) de la Loi doit prêter le serment de citoyenneté par un serment ou une affirmation solennelle faite devant le juge de la citoyenneté.
(2) Unless the Minister otherwise directs, the oath of citizenship shall be taken at a citizenship ceremony.
(2) À moins de directives contraires du ministre, le serment de citoyenneté doit être prêté lors d’une cérémonie de la citoyenneté.
(3) If a person is to take the oath of citizenship at a citizenship ceremony, a certificate of citizenship shall be forwarded by the Registrar to a citizenship officer of the appropriate citizenship office, who shall notify the person of the date, time and place at which the person is to appear before the citizenship judge to take the oath of citizenship and receive the person’s certificate of citizenship.
(3) Lorsqu’une personne doit prêter le serment de citoyenneté lors d’une cérémonie de la citoyenneté, le greffier fait parvenir le certificat de citoyenneté à l’agent de la citoyenneté du bureau de la citoyenneté compétent, lequel avise la personne des date, heure et lieu auxquels elle doit comparaître devant le juge de la citoyenneté pour prêter le serment de citoyenneté et recevoir son certificat de citoyenneté.
20. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who is 14 years of age or older on the day on which the person is granted citizenship under subsection 5(2) or (4) or 11(1) of the Act shall take the oath of citizenship by swearing or solemnly affirming it
20. (1) Sous réserve du paragraphe 5(3) de la Loi et de l’article 22 du présent règlement, la personne qui a 14 ans révolus à la date à laquelle elle se voit attribuer la citoyenneté en vertu des paragraphes 5(2) ou (4) ou 11(1) de la Loi doit prêter le serment de citoyenneté par un serment ou une affirmation solennelle fait :
(a) before a citizenship judge, if the person is in Canada; or
a) au Canada, devant le juge de la citoyenneté;
(b) before a foreign service officer, if the person is outside Canada.
b) à l’étranger, devant l’agent du service extérieur.
(2) Where a person is to take the oath of citizenship pursuant to subsection (1), the Registrar shall forward a certificate of citizenship to
(2) Lorsqu’une personne doit prêter le serment de citoyenneté en vertu du paragraphe (1), le greffier doit :
(a) a citizenship officer of the citizenship office that the Registrar considers appropriate in the circumstances, if the oath is to be taken in Canada; or
a) si le serment doit être prêté au Canada, transmettre le certificat de citoyenneté à l’agent de la citoyenneté du bureau de la citoyenneté qu’il juge compétent en l’espèce;
(b) a foreign service officer in the country in which the person is living, if the oath is to be taken outside Canada.
b) si le serment doit être prêté à l’étranger, transmettre le certificat de citoyenneté à l’agent du service extérieur dans ce pays.
(3) A citizenship officer or foreign service officer mentioned in paragraph (2)(a) or (b) shall notify the person of the date, time and place at which the person is to appear and take the oath of citizenship.
(3) L’agent de la citoyenneté ou l’agent du service extérieur visé aux alinéas (2)a) ou b) avise la personne des date, heure et lieu auxquels elle doit comparaître pour prêter le serment de citoyenneté.
21. Subject to section 22, a person who takes the oath of citizenship pursuant to subsection 19(1) or 20(1) shall, at the time the person takes it, sign a certificate in prescribed form certifying that the person has taken the oath, and the certificate shall be countersigned by the citizenship officer or foreign service officer who administered the oath and forwarded to the Registrar.
21. Sous réserve de l’article 22, la personne qui prête le serment de citoyenneté aux termes des paragraphes 19(1) ou 20(1) doit, au moment de la prestation du serment, signer un certificat selon la formule prescrite pour certifier qu’elle a prêté le serment, et le certificat doit être contresigné par l’agent de la citoyenneté ou l’agent du service extérieur qui a fait prêter le serment et transmis au greffier.
22. (1) The Minister or a person authorized by the Minister in writing to act on the Minister’s behalf may administer the oath of citizenship to any person who has been granted citizenship and, in such case, the Registrar shall make all necessary arrangements for the purpose of administering the oath.
22. (1) Le ministre ou la personne qu’il a déléguée par écrit peut faire prêter le serment de citoyenneté à toute personne qui s’est vu attribuer la citoyenneté. En pareil cas, le greffier prend les dispositions nécessaires pour la prestation du serment.
(2) Where the Minister or a person authorized by the Minister in writing to act on the Minister’s behalf administers the oath of citizenship, a citizenship officer who is authorized to do so by the Registrar shall countersign the certificate and forward it to the Registrar.
(2) Lorsque le ministre ou la personne qu’il a déléguée par écrit fait prêter le serment de citoyenneté à une personne, l’agent de la citoyenneté autorisé par le greffier contresigne le certificat et le transmet à ce dernier.
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…
24. Subject to sections 19 to 22, any oath, solemn affirmation or declaration that is made for the purposes of the Act or these Regulations may be taken before
24. Sous réserve des articles 19 à 22, tout serment prêté ou toute affirmation ou déclaration solennelle faite pour l’application de la Loi ou du présent règlement peut l’être :
(a) the Registrar, a citizenship judge, a citizenship officer, a commissioner for taking oaths, a notary public or a justice of the peace, if made in Canada; or
a) au Canada, devant le greffier, le juge de la citoyenneté, l’agent de la citoyenneté, le commissaire aux serments, le notaire ou le juge de paix;
(b) a foreign service officer, a judge, a magistrate, an officer of a court of justice or a commissioner authorized to administer oaths in the country in which the person is living, if made outside Canada.
b) à l’étranger, devant l’agent du service extérieur, le juge, le magistrat, l’agent d’une cour de justice ou le commissaire autorisé à faire prêter les serments dans le pays où réside la personne.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-75-14
STYLE OF CAUSE:
ZUNERA ISHAQ v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
TORONTO, ONTARIO
DATE OF HEARING:
OCTOBER 16, 2014
JUDGMENT AND REASONS:
BOSWELL J.
DATED:
FEBRUARY 6, 2015
APPEARANCES:
Lorne Waldman
FOR THE APPLICANT
Negar Hashemi
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers and Solicitors
Toronto, Ontario
FOR THE APPLICANT
William F. Pentney
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
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