Canada v. Ishaq: Guidance From The Federal Court Of Appeal On Motions For Intervener Status

The Federal Court of Appeal's recent decision in Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194 has attracted national attention. On September 15, 2015, the Court of Appeal upheld the decision of the Federal Court that had the effect of permitting the respondent, Zunera Ishaq, a devout Muslim, to wear a niqab veil while taking the oath of citizenship. But before the Court released this decision on the merits, Justice Stratas of the Federal Court of Appeal authored a strongly-worded decision (2015 FCA 151) in response to the motions of six parties who sought to intervene in the appeal. Justice Stratas's decision lays out a roadmap for a successful intervention motion, and warns against certain practices on these motions that have become increasingly common.

The six prospective interveners sought to make submissions on certain Charter issues that could have been relevant in the appeal. In assessing the motions, Justice Stratas referred to the test established in Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21, which sets out five questions for the Court to consider. Included among these questions is whether the proposed intervener will "advance different and valuable insights and perspective that will actually further the Court's determination of the matter."

Justice Stratas found that all six motions failed on this ground, which he characterized as "perhaps the most important factor" for the Court to consider on an intervention motion. He held that the six moving parties provided submissions that were "too general and diffuse to be persuasive," giving rise to the concern that "nothing much different from the submissions of the parties already before the Court will be said." Justice Stratas also cautioned against the practice of "bootlegging" fresh evidence on the...