keesio said:
Identification is my only issue regarding wearing outfits that can conceal one's identification. It is said that CIC walks around and makes sure everyone is saying the oath by watching people's lips. How did they resolve this so that it is now moot?
This was part of the rules or policy implemented by Jason Kenney. Now, under Minister Chris Alexander these are embodied in Program Delivery Instructions.
As of today, the Program Delivery Instructions (PDIs) (see
PDIs for Oath of Citizenship and in particular the
the PDIs govering "Religious and cultural considerations during citizenship ceremonies") continue to require "candidates" to remove facial coverings
during the taking of the oath, but the PDIs have a banner indicating that due to the Federal Court of Appeal decision, some instructions concerning
being seen taking the Oath of Citizenship are "no longer current" and are "being developed" or "will be updated shortly."
My sense is that whether they will be "updated shortly" or not is dependent on whether the government can obtain a stay pending an appeal to the Supreme Court. If the stay is granted, no new instructions will be implemented. If a stay is denied, CIC will have to change its policies.
For the most part, for most of the rules or policy governing the taking of the oath itself, the existing rules/policy could be considered consistent with, and a reasonable way to enforce the statutes and regulations which prescribe that to become a citizen an adult must take an oath.
In the rule as implemented, initially by Jason Kenney and more recently as composed in the PDIs, there is, however, no explanation or policy or accommodation for how a mute person might take the oath. Or for a Buddhist who has made a vow of silence.
Nor for a person who because of her religious faith wears a facial covering.
Only the latter has been subject to the litigation in the Federal Court, that is, the extent to which the rule or policy does not accommodate a person who, because of religious beliefs, wears a facial covering. In contrast, the rule or policy specifically mandates that individuals wearing facial coverings must remove those while taking the oath . . . actually, the policy/rule specifically provides for removal of the facial covering twice:
-- once for
identification of the candidate, to be done "in private by a female citizenship official," requiring the candidate to reveal her face to confirm her identity.
-- the second is during the taking of the Oath
(again, this is found in the PDIs governing
"Religious and cultural consideration during citizenship ceremonies")
It is the requirement to remove the facial covering during the taking of the oath that the Federal Court ruled contravenes the applicable
regulations, those regulations which specifically mandate a policy of actually
encouraging the exercise of an individual's religion in the process of taking the oath.
In particular,
Citizenship Regulation 17.(1)(b) provides:
. . . "a citizenship judge [must] . . . administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemization . . . "
(emphasis added)
This language has been interpreted by the court to include "the circumstances in which candidates are required to take [the oath]."
Those who have attended citizenship oath ceremonies are well familiar with the variety of formal dress participants wear to the ceremonies, often representing traditional dress in the participant's religion or ethnic heritage.
Indeed, generally those invited to take the oath are encouraged to do so dressed in traditional formal attire for the occasion. There are very Canadian reasons for this: Canada prides itself as a multicultural society.
It is probably worth noting that this language, in the applicable law (section 17.(1)(b) of the
Citizenship Regulations), is significantly stronger than the respective provision of the Charter regarding religious rights. Again, the regulation says the CJ
MUST . . . allow "the greatest possible freedom in the religious solemization . . . ".
Again, some will disagree about the policy. But the law leaves little room if any room to quibble. No matter if one believes that Harper and Kenney are right as a matter of what should be policy, they are clearly wrong on the law. And they know this. Yet they continue to use the courts to block citizenship for this woman, and they are doing so for the purpose of partisan posturing.
I have made reference to this as a "rule" or "policy" because CIC attempted, in its argument to the Federal Court, to draw a distinction between a rule and a policy. CIC argued, in effect, that the Court should not order CIC to allow Ishaq to take the oath without removing her facial veil because there is
no rule requiring her to remove her veil while taking the oath. It is only a "policy." Note however, the PDIs specifically state:
"Failure to [remove a facial covering during the taking of the oath] will result in the candidates not receiving their Canadian citizenship on that day." (Again, this is the current version of the PDIs for
"Religious and cultural consideration during citizenship ceremonies," recognizing that CIC says that amendments to these are being developed.)
Verification of Identity:
This is a requirement for
both the test (including documents-check at the interview/test)
and at the event for taking the oath. Zurera Ishaq did not object to this requirement, and had indeed unveiled herself to an official before taking the citizenship test. There is a separate procedure in the oath ceremony instructions for removal of facial coverings
in private for the purpose of
identifying the candidate.
Simply put, removing the veil during the taking of the oath itself is unnecessary for purposes of verifying identity.
Verification of Oath:
Current policy and practice requires new citizens to sign a form affirming the oath
after actually taking the oath. (I do not recall having to do this at my oath ceremony in March 2014; my sense is this was implemented later in 2014, but I am not sure when it was implemented.)
Thus, at the least, new citizens must verify their oath in writing.
In particular, Justice Boswell stated (
Zunera Ishaq and the Minister, paragraph 59) that the requirement imposed . . . that
"a candidate for citizenship be seen taking the oath does appear to be superfluous."
In other words: unnecessary, at best redundant.
In particular, Justice Boswll ruled (paragraph 62):
"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 [Citizenship Act section 24]."
Another aspect of this which illuminates how wrong Harper and Kenney are on the law:
It was Jason Kenney who initially implemented the rules or policy regarding the removal of facial coverings and having hall monitors (citizenship officials) watch to be sure that those who were taking the oath were actually saying the oath outloud, and then these were reformed into the PDIs. In fact, the PDIs explicitly outline every aspect of the oath ceremony.
But here is what the
law requires: Section 27 of the Citizenship Act specifically states that the
Governor in Council may make regulations govering the procedures to be followed by CJs, including ceremonial procedures, and specifically (subsection 27.(1)(h) of the
Citizenship Act) respecting the taking of the oath of citizenship.
The procedure for taking the oath is NOT for the Minister of CIC to prescribe.
This government appears to have virtually no regard for the law at all.
Harper, Kenney, and Alexander have no leg at all to stand on relative to pursuing an appeal of the Federal Court of Appeal.
The irony is that of course the Governor in Council is merely the manifestation of the Prime Minister through the PMO and Cabinet, so it would have been relatively easy for Kenney, or Alexander, to have their
rules implemented as regulations by the Governor in Council, and thus binding . . . except that requires going through the democratic process of posting notice and allowing a period for comments to be submitted.
