February 16, 2012
Not Only is Minister Kenney’s Ban on Face Coverings a Gratuitous Insult to Muslim Women, It’s Ultra Vires
Audrey Macklin, Faculty of Law, University of Toronto
In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I’d find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies. The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law – the Citizenship Act and the Citizenship Regulations. Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.
You can find the citizenship manual here (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.
The more interesting discovery, though, is the citizenship regulations that govern citizenship ceremonies. These seem to provide an entitlement to religious accommodation, and therefore cut against the legality of the Minister’s instructions. Section 17(1)(b) speaks directly to religiosity, and 17(1)(d) to ‘intergroup understanding’ as a component of good citizenship.
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,
(a) emphasize the significance of the ceremony as a milestone in the lives of the new citizens;
(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;
(c) personally present certificates of citizenship, unless otherwise directed by the Minister; and
(d) promote good citizenship, including respect for the law, the exercise of the right to vote, participation in community affairs and intergroup understanding.
(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).
Second, s. 22 seems to distinguish between the grant of citizenship and the oath — leaving open the question of the citizenship status of one who has been granted citizenship but does not take the oath.
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.
(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.
Bottom line is that the citizenship manual’s mandatory instructions about face covering strike me as ultra vires the regulation, and without legal authority, quite apart from any Charter challenge.
The Canadian Association of Refugee Lawyers is willing to undertake a legal challenge to the ban on face-covering at citizenship ceremonies. We think it would be optimal if we could with a litigant who would be directly affected by the ban. If you know of someone who might fit that description, please let me know.