Liberals Drop Niqab Appeal Harper Govt Took To Supreme Court; Trudeau orders federal Justice Minister Wilson-Raybould to end Harper’s Charter attacks

Liberal government drops Supreme Court of Canada niqab appeal by Sean Fine, The Canadian Press, November 16, 2015, The Globe and Mail

The Liberal government has ended Ottawa’s four-year fight against the wearing of the face veil during the citizenship oath, withdrawing a request to the Supreme Court to hear an appeal on the issue.

Coming three days after the Paris attacks by Muslim terrorists that killed at least 129 people, the decision struck the woman at the centre of the case as especially kind. Zunera Ishaq, a Pakistani immigrant who lives in Mississauga, Ont., had defeated the previous Conservative government at two levels of court, and found herself in the midst of a heated election issue.

Prime Minister Justin Trudeau said during the campaign that the niqab issue was needlessly dividing Canadians. The Conservatives had promised to create a telephone line for reporting “barbaric cultural practices,” such as forced marriage, and to consider adopting a ban on the wearing of the niqab while giving or receiving federal services.

“This is an act of kindness in favour of minorities,” Ms. Ishaq, 29, said in an interview of the Liberals’ decision to end the niqab fight. “It means they are showing their respect and honour towards the minorities. In the countries where the government shows respect for kind behaviour toward minorities, I believe the public does the same.”

Justice Minister Jody Wilson-Raybould phoned her personally to tell her, she said. “She was talking to me so nicely, so supportive and strong in her talk. I feel very honoured that she called me and gave me her personal time.”

 The previous government’s fight against the niqab began in 2011, when Jason Kenney was immigration minister, after a Conservative MP from Mississauga told him about a citizenship ceremony in which four women were veiled. Mr. Kenney issued a ministerial directive that such women had to show their faces while saying the oath. (Women have to uncover their faces in private, in front of a female official, for identification purposes at the start of the ceremony. That requirement was not at issue in Ms. Ishaq’s case.)

… The Federal Court said that, under the Citizenship Act, only cabinet could change the rules for the ceremony. It also said the act requires respect for religious faith. The Federal Court of Appeal upheld the ruling, and rejected Ottawa’s request to suspend the ruling while it appealed. Ms. Ishaq was then able to obtain her citizenship while wearing the niqab.


The Conservative government never filed its arguments with the Supreme Court in connection with the appeal, and the case would have lapsed on Nov. 21 if the Liberals had not acted.

“By actually, formally withdrawing it, they’re sending a signal that they don’t agree with the position taken by the former government,” said Lorne Waldman, a Toronto lawyer who represented Ms. Ishaq. “Especially in light of what happened in Paris, the government is sending out a clear message encouraging tolerance and acceptance of difference.”

Liberals Drop Niqab Appeal Harper Government Took To Supreme Court by Jim Bronskill, The Canadian Press, November 16, 2015,
The Liberal government is abandoning a highly controversial court challenge involving the niqab.

The Conservatives had asked the Supreme Court of Canada to hear an appeal of a ruling that said it was unlawful to prohibit women from wearing a face covering at a citizenship ceremony.

Stephen Harper’s government argued it was important for new citizens to show their face at the moment they become Canadian.

The Liberals accused the Conservatives of using the niqab, which is worn by only a small number of women, as a distraction and a wedge issue during the recent federal election campaign.

Justice Minister Jody Wilson-Raybould and Immigration Minister John McCallum say the court application has been discontinued.

In a statement, they say Canada’s diversity is among its greatest strengths, and the Liberals are ensuring that successful citizenship candidates continue to be included in the Canadian family.

The full statement:

On November 16, 2015, the Attorney General of Canada notified the Supreme Court of Canada that it has discontinued its application for leave to appeal in the case of Minister of Citizenship and Immigration v. Ishaq. The Federal Court of Canada found that the policy requiring women who ear the niqab to unveil themselves to take the Oath of Citizenship is unlawful on administrative law grounds, and the Federal Court of Appeal upheld this ruling. The government respects the decision of both courts and will not seek further appeal to the Surpreme Court of Canada.

Canada’s diversity is among its greatest strengths, and today we have ensured that successful citizenship candidates continue to be included in the Canadian family. We are a strong and united country because of, not in spite of, our differences.

Trudeau orders Wilson-Raybould to end Tory Charter litigation by James Munson, November 13, 2015, ipolitics

The prime minister has given Justice Minister Jody Wilson-Raybould a broad responsibility to review the federal government’s litigation strategy, a license to put a brake on any cases the Conservatives began during their time in power.

“This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values,” Trudeau says in his mandate letter to Wilson-Raybould, one of 30 such letters made public today for the first time ever at the federal level.

The first step in that mandate is likely to come on Monday, when Wilson-Raybould, the country’s first indigenous justice minister and a former Crown prosecutor, is expected to withdraw Ottawa’s appeal of a Federal Court of Appeal decision to permit niqabs during citizenship ceremonies, according to CBC News.

The Harper government announced the plan to appeal in the midst of the federal election, sparking a acrimonious debate on cultural accommodation and minority rights for several weeks during the campaign.

Wilson-Raybould could also end the government’s appeal of an Alberta court’s decision to grant Omar Khadr bail, as well as its stiff resistance to back-tracking on its elimination of health care services to some refugees.

The mandate letter also signals that Wilson-Raybould will have to work closely with her cabinet colleagues, as she will be the government’s top lawyer while the Liberals launch a national inquiry into missing and murdered indigenous women, legalize and regulate the use of marijuana and review the legal framework for charities and not-for-profits, who underwent a crackdown on their political activities under the Conservatives.

In a surprise move, Wilson-Raybould will also introduce legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act, said the mandate letter.

The complete list of ministerial mandate letters is available here, on the PMO website.

2013 03 11 Canada Fracked the Head off Lady Justice

Under Harper, Canada’s AG senior counsel Michael H. Morris filed notice to intervene in the Ernst vs AER hearing before the Supreme Court of Canada. The AGC must file its factum by December 23, 2015.

2015 08 17 snap Notice of Intervention for Harper's AG Canada in Ernst vs AER, Docket 36167


Will Justice Minister Wilson-Raybould argue for or against the Charter rights of Canadians abused by energy regulators like the AER?



Office of the Prime Minister

Dear Ms. Wilson-Raybould:

You have a double role as both Minister of Justice and the Attorney General of Canada. As Minister of Justice, you are the legal advisor to Cabinet. In this capacity you are responsible with the administration of justice, including policy in such areas as criminal law, family law, human rights law, public law and private international law, constitutional law and Aboriginal justice. As the Attorney General of Canada, you are the chief law officer of the Crown, responsible for conducting all litigation for the federal government and for upholding the Constitution, the rule of law, and respect for the independence of the courts.

As Minister of Justice and Attorney General of Canada, your overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

In particular, I will expect you to work with your colleagues and through established legislative, regulatory, and Cabinet processes to deliver on your top priorities:

  • Lead a process, supported by the Minister of Health, to work with provinces and territories to respond to the Supreme Court of Canada decision regarding physician-assisted death.
  • Develop, in collaboration with the Minister of Indigenous and Northern Affairs, and supported by the Minister of Status of Women, an approach to, and a mandate for, an inquiry into murdered and missing Indigenous women and girls in Canada, including the identification of a lead Minister.
  • Review our litigation strategy. This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.
  • You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system. Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians, and implementation of recommendations from the inquest into the death of Ashley Smith regarding the restriction of the use of solitary confinement and the treatment of those with mental illness.
  • Work with the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous and Northern Affairs to address gaps in services to Aboriginal people and those with mental illness throughout the criminal justice system.
  • Working with the Ministers of Public Safety and Emergency Preparedness and Health, create a federal-provincial-territorial process that will lead to the legalization and regulation of marijuana.
  • Undertake modernization efforts to improve the efficiency and effectiveness of the criminal justice system, in cooperation with provinces and territories. This should include improved use of information technology to make the system more efficient and timely, exploration of sentencing alternatives and bail reform, and the creation of a unified family court.
  • Support the Minister of Canadian Heritage to restore a modern Court Challenges Program.
  • Work with the Ministers of Finance and National Revenue to develop a modernized regulatory and legal framework governing the Charitable and Not-for-Profit sectors.
  • Engage all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive and accountable to Canadians.
  • Consultations should be undertaken with all relevant stakeholders and those appointed to the Supreme Court should be functionally bilingual.
  • Support the Minister of Public Safety and Emergency Preparedness in his efforts to repeal key elements of Bill C-51, and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.
  • Support the Minister of Public Safety and Emergency Preparedness in his efforts to repeal key elements of Bill C-42 and implement our commitment to reduce the number of handguns and assault weapons on our streets.
  • Implement our platform commitments to toughen criminal laws and bail conditions in cases of domestic assault, in consultation with stakeholders and with the goal of keeping survivors and children safe. You should undertake this work in consultation with the Minister of Status of Women and the Minister of Public Safety and Emergency Preparedness.
  • Work with the President of the Treasury Board to enhance the openness of government, including supporting his review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.
  • Introduce government legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act, and to the list of distinguishing characteristics of “identifiable group” protected by the hate speech provisions of the Criminal Code.

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