Veils, Oaths, and Canadian Citizenship: Ishaq v Canada

On February 6, 2015, in the well-publicized decision of Ishaq v Canada (Minister of Citizenship and Immigration), 2015 FC 156 [Ishaq], the Federal Court ruled that it was unlawful for the Canadian Government to ban new citizens from reciting the citizenship oath with a face-covering veil. Since the decision was released, the Harper Government has announced emphatically that it will appeal the judgment.


Zunera Ishaq, who has been a permanent resident of Canada since 2008, is a devout Sunni Muslim. Her religious beliefs require her to wear a niqab, which covers most of her face, in public and in front of unrelated adult males. She applied for citizenship, and a citizenship judge approved her application on December 30, 2013. Although she was granted citizenship, she is not considered a Canadian citizen under paragraph 3(1)(c) of the Citizenship Act, RSC 1985, c C-29 until she takes the oath of citizenship.

In 2011, Citizenship and Immigration Canada (“CIC”) introduced Operation Bulletin 359, which has been incorporated into section 6.5 of the CIC policy manual CP 15: Guide to Citizenship Ceremonies (the “Manual”). Section 6.5 of the Manual requires candidates that wear face coverings to remove their face coverings when they recite the oath at the citizenship ceremony (the “Policy”).

Refusing to remove one’s face covering will result in a candidate not receiving his or her citizenship certificate. Such candidates will be permitted to attend another ceremony, but, if they continue to refuse to remove their face coverings, their application for citizenship will end.

When she learned about the Policy, Ishaq initially requested to reschedule her citizenship ceremony. The following day she filed an application for judicial review and later moved for an order enjoining the Government from applying the Policy at her ceremony. While she had previously removed her face covering in private to female staff in order to confirm her identity, Ishaq was unwilling to do so in a public setting.

In response, the Government agreed to reschedule the ceremony and offered to have Ishaq sit in the front or back row during the ceremony and to be seated next to a woman. The Government argued that this would make it more difficult for other oath takers to see her face during the recital of the oath. This arrangement was refused, as the citizenship judge, the officers, and potential photographers could be male.

The Federal Court Decision

While Ishaq challenged the Policy on the basis of sections 2(a) and 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Justice Boswell allowed the appeal on the ground that the Policy is inconsistent with its governing legislation.

Section 17(1)(b) of the Citizenship Regulations, SOR/93-246 [Regulations] 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” (Ishaq, para 53).

Justice Boswell reasoned that imposing the Policy on citizenship judges makes it impossible for them to comply with section 17(1)(b) of the Regulations because the Policy is inconsistent with citizenship judges’ duty to afford the greatest possible freedom in taking the oath. He argued that a citizenship judge cannot comply with this duty if the Policy forces citizenship candidates to violate a tenet of their religion in order to take the oath.

The Minister of Citizenship and Immigration argued that the Policy is only a guideline and citizenship judges are free to disregard it. The argument is that, at best, the Policy can only create an expectation that it will be followed, so it cannot be said that the Policy would fetter a citizenship judge’s discretion.

The Minister’s argument, however, is inconsistent with both the language of the policy and internal correspondence between CIC officials that was put forward as evidence. The Manual contains no indication that discretion should be exercised. The language of the policy suggests it is tantamount to a law.

Furthermore, internal CIC correspondence indicates that it is the intention of the Policy that no private accommodations be made and that a citizenship judge’s prior contrary statement in the media is “problematic” and contradictory to the Policy.

Accordingly, Justice Boswell found the Policy to be invalid. Because the case was decided on a non-constitutional ground, Justice Boswell did not engage in a fulsome analysis of the Charter issues that were put forward by the applicant.


The Government’s steadfast refusal to grant alternative accommodations to women who have a religious obligation to wear a face-covering veil is unsettling. Justice Boswell himself recognized that this Policy could dissuade women who wear a niqab from even applying for citizenship.

Evidence that was put forward demonstrates that the Policy affects approximately 100 women per year. The oath takes less than one minute to recite. Granting alternative accommodation for these women to take the oath in private in front of a female citizenship judge would not be an onerous undertaking, and, in fact, this is what was done prior to the implementation of the Policy. No justification has been given for the change.

Considering the modest accommodations that would be needed to allow women affected by the Policy to recite the oath without any compromise to their religious practices and dignity, it is disconcerting but unsurprising that the Government would choose to allocate far greater resources to further litigating this matter during an election year.

In Ishaq, the federal government repeatedly argued that the applicant did not have to pursue Canadian citizenship if she did not want to comply with the Policy. The Government stated that she would still have the benefits of permanent residence, ignoring the fact that that would leave her politically powerless. Along with the stringent changes to the citizenship process introduced in the Strengthening Canadian Citizenship Act, SC 2014, c 22, the Harper Government’s position in Ishaq makes it clear that it views citizenship as a privilege and not a right.

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6 Responses

  1. Luisa Apostol says:

    It may now be the right time to do away with the solemn oath itself. I propose that when a citizenship candidate meets all the requirements ( makes proof of identity, length of residency) and passes the examination, one should be given the option of either attending a swearing solemnity or be notified in writing of one’s change of status.
    That, I think, may solve the face-covering problem.

  2. Until one is a citizen, one has only the “privilege” of becoming a citizen, not a right to be a citizen.
    What if such face-covering is not a requirement of the religion, but of a cultural, social, or ethnic practice?
    Both serve male sexual possessiveness. Although the Canadian Charter of Rights and Freedoms protects religious practices, does it protect those practices that make women of lesser status and freedom of association than men, which practices are not rooted in religion? But if so, on what side of the issue would the Charter’s “freedom of conscience” come down on this issue? Section 2(a) appears to equate it with freedom of religion. Established “religion” is an objective standard and therefore ascertainable. But “conscience” is subjective and therefore whatever one’s conscience wants to make it. Or is it to be determined objectively, jurisdiction by jurisdiction, or perhaps judge by judge, appeal court panel by appeal court panel, state by state in those states that elect their judges? Shouldn’t we appoint a few veiled-covered judges to settle this issue? (If they will first uncover their faces to become citizens.) When the Supreme Court of Canada decides this “citizenship swearing issue,” should the lady barristers arguing before them be allowed to veil their faces, or wear a hijab, or the full head-to-toe burqa?
    Perhaps this issue should be decided by the fact that the “supremacy of God” is stated in the opening line of the Charter, and stated before “the rule of law”! What does God require of the Charter as an exception to the “rule of law”? We need a 4th year for religious studies, to be added to law schools to prepare for giving legal advice concerning such issues, (for that minority of Canada’s residents who can still afford a lawyer to provide it). Amen.

  3. Jeff G. (Toronto) says:

    The PM and other supporters of the veil ban during the citizenship ceremony continue to parrot 4 “arguments” against wearing a face covering:

    1. allowing people to hide their faces during the oath-taking could result in some sort of (unspecified) nefarious identity swap scheme;
    2. hiding one’s face is inconsistent with the spirit of openness and honesty integral to the oath-taking;
    3. the veil is a weapon of male dominance and female subjugation; and
    4. “if they don’t like our laws, they don’t have to come here.”

    However, none of these arguments hold water since,

    1. the identities of the oath takers are verified — and their faces are seen — right before the ceremony;
    2. the stated reasons for these women wearing the veil have nothing to do with being dishonest or secretive, just modest (as per their religious precepts and beliefs);
    3. the veil almost certainly IS frequently used as a means of female repression in the Muslim world, but that does not mean that all women who wear the niqab are being forced to do so (and Canada is no Iran, with morality police arresting inappropriately clad women); PM Harper et al. are merely substituting one form of repression for another by telling these women they now must dress to conform to a new dominant group’s standards of propriety; and, if anything, the government is only increasing the odds that veiled women in Canada will be repressed by denying them citizenship and so keeping them “off the radar”;
    4. these women ARE here and are entitled to avail themselves of various legal rights and protections… as did Ms. Ishaq. And the law is currently on her side, since a court has ruled that the CIC Policy was wrong to insist that she uncover her face.

    Sadly, the government doesn’t have the good grace to abide by the court’s ruling and let Ms. Ishaq attend a citizenship ceremony on her own religious and moral terms. Mr. Harper would rather spend tax dollars on an appeal, for the sake of keeping 100-or-so veiled women per year from becoming Canadians. His argument that he is doing so as a defender of freedom, openness and women’s rights is wearing thin: one just has to listen to the Islamophobic bile and anti-immigrant hatred being voiced by the government’s staunchest supporters on this issue, to understand to which base sentiments the PM is playing.

  4. Heith says:

    We need the utter separation of church and state in order to uphold Canadian values. Religion should be completely removed from the courtroom. Any oath should be taken to the flag or a symbol of the government. This will help protect Canada from religious fundamentalists. There should be no consideration for religion whatsoever in judicial proceedings. Unfortunately our government has its hands tied by religion so even fundamentalists who will never consider themselves or their progeny Canadian, will be protected by the rights and freedoms that are the antithesis of their way of life.

  5. George Apostol says:

    Agreed with taking the religion out of courts, parliament and all public administration. However I have two issues with the requirement that immigrants utter an oath to become Canadians. (1) Why all others are not required to go through same procedure. (2) Why an oath and not of a simple signature in front of a judge on an promise to be a good Canadian citizen.

  6. Tikam Lalla says:

    Upto 1975, you could get citizenship in mail and there was no procedure for oath taking at all.
    Alternative would be either women wearing veil appear before a woman judge or lady court staff verify the name or take oath before woman lawyer and file the affidavit to that effect.

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