Velasquez Guzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 1134

Thus, the applicant’s sponsorship application was rejected as the applicant was in receipt of social assistance for a reason other than disability from the date the sponsorship application was made until the day a decision with respect to the application was made. 

II.  Issues

(1)    Does paragraph 133(1)(k) of the IRPR violate subsection 15(1) of the Charter in that it discriminates on the basis of receipt of social assistance?

(2)   If paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter can this violation be saved by section 1 of the Charter?

(3)   If paragraph 133(1)(k) of the IRPR is not justifiable under section 1 of the Charter should paragraph 133(1)(k) of the IRPR be declared ultra vires and of no force or effect pursuant to subsection 24(1) of the Charter?

III.  Analysis

(1)   Does paragraph 133(1)(k) of the IRPR violate subsection 15(1) of the Charter in that it discriminates on the basis of receipt of social assistance?

[7]   Subsection 15(1) of the Charter states the following:

[8]   In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at paragraph 51, the Supreme Court stated that the purpose of subsection 15(1) is:

to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

[9]   The Supreme Court in Law then went on to establish a three-step framework for analysing a claim for discrimination under subsection 15(1) of the Charter.  The framework set out in Law is the following (Law v. Canada, above, paragraph 39):

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?  If so, there is differential treatment for the purpose of s. 15(1).  Second was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds?  And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? 

[10]                       The applicant in the case at hand claims that paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter as but for such paragraph the applicant would be entitled to sponsor her spouse.  She claims that paragraph 133(1)(k) is discriminatory as it prevents those on social assistance from being able to sponsor a relative they would otherwise be qualified to sponsor.   To effectively address this argument, the Law three-step framework must be used to analyse the discrimination claim.

(a)    Does paragraph 133(1)(k) draw a formal distinction between the claimant and others on the basis of personal characteristics?

[11]                         Section 133(1)(k) makes a distinction between those who are and those who are not in receipt of social assistance. 

[12]                       Although a distinction is made between those who are and those who are not in receipt of social assistance, the question is whether receipt of social assistance is to be considered a personal characteristic, a necessary condition of the first prong of the Law test. 

[13]                       The respondent lists a multitude of cases in which it was found that income, poverty and economic status are not characteristics that attach to the individual, including Donavan v. Canada, 2005 TCC 667 at paragraph 18 (the amount of a child support payment is a question of economic status which is not an immutable personal characteristic); Dunmore v. Ontario (Attorney General), (1997) 155 D.L.R. (4^th) 193, aff’d (1999) 182 D.L.R. (4th) 471 (Ont. C.A.), rev’d. [2001] 3 S.C.R. 1016 (reversed on other grounds) (working in a particular economic sector, namely as an agricultural worker, is not a personal characteristic); Bailey v. Canada, 2005 FCA 25 at paragraph 12 (income level is not to be considered a personal characteristic).  The respondent claims, that by analogy, receipt of social assistance should not be considered a personal characteristic. 

[14]                       This being said, Justice Laskin writing for the Court of Appeal for Ontario in Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch), [2002] 49 O.R. (3d) 481 (Ont. C.A.), recognized that discrimination on the basis of social assistance could amount to discrimination under section 15. 

[15]                       Inherent in finding that discrimination on the basis of social assistance is a violation of section 15 of the Charter, as was found in Falkiner, is that receipt of social assistance must be considered a personal characteristic under the first prong of the Law test.  The question that is raised is, notwithstanding the findings in Falkiner, can the applicant’s receipt of social assistance, taking into consideration the particular facts of the case, be considered a personal characteristic as is required under the Law test.  I believe that this question must be answered in the negative.  In the particular circumstances of this case, the applicant’s receipt of social assistance cannot be considered a personal characteristic under section 15 of the Charter as the particular facts in this case distinguish it from the situation in Falkiner. 

[16]                       To conduct an effective analysis of the distinguishing features between the two cases, an in-depth analysis of what is meant by the term “personal characteristic” under the first prong of the Law test is required.  The jurisprudence giving meaning to what is meant by “personal characteristic” under the first prong of the Law test is limited, as in most situations determining whether a formal distinction is on the basis of a personal characteristic is straightforward.  For instance, in the case of M v. H., [1999] 2 S.C.R. 3 at paragraphs 61-62, the Supreme Court limited its analysis of the first prong of the Law test to the following:

¶ 61   ¼Section 29 defines "spouse" as "either of a man and woman" who meet the other requirements of the section. It follows that the definition could not have been meant to define a couple. Rather it explicitly refers to the individual members of the couple. Thus the distinction of relevance must be between individual persons in a same-sex, conjugal relationship of some permanence and individual persons in an opposite-sex, conjugal relationship of some permanence.

¶ 62     Thus it is apparent that the legislation has drawn a formal distinction between the claimant and others, based on personal characteristics. As stated in Law, supra, the first broad inquiry in the s. 15(1) analysis determines whether there is differential treatment

[emphasis in the decision]

The Supreme Court’s analysis of the first prong of the Law test was even more limited in Eldridge v. British Columbia, [1997] 3 S.C.R. 624 at paragraph 59:

There is no question that the distinction here is based on a personal characteristic that is irrelevant to the functional values underlying the health care system.  Those values consist of the promotion of health and the prevention and treatment of illness and disease, and the realization of those values through the vehicle of a publicly funded health care system.  There could be no personal characteristic less relevant to these values than an individual's physical disability.

In Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 4, the first prong of the Law test analysis was even more succinct:

The first step is to determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden.  The Indian Act's exclusion of off-reserve band members from voting privileges on band governance satisfies this requirement.

As Justice McLachlin (as she then was) said writing for the majority in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2.S.C.R. 625 at paragraph 78:

The first requirement of s. 15(1), differential treatment on the basis of a personal characteristic, is not usually difficult to establish: Egan v. Canada, [1995] 2 S.C.R. 513, at p. 531, per La Forest J

[17]                       This being said, there have been a few cases that have pronounced that immutability, or at least permanency of some degree, is an essential attribute of a “personal characteristic”.  In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 195,  Justice La Forest found citizenship to be a personal characteristic because:

The characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable.  Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs.

[My emphasis]

In Corbière, in discussing the analysis to be undertaken under the second prong of the Law test, Justices McLachlin (as she then was) and Bastarache writing for the majority of the Supreme Court, state (Corbière v. Canada, above, paragraph 13):

It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law.

[My emphasis]

[18]                       I feel that notwithstanding what has been said in the case law as to what is meant by the term “personal characteristic” (“caractéristique personnelle” en français), it is important to effectively define the term so that a determination as to whether receipt of social assistance in the particular circumstance of the applicant is a personal characteristic.  The Oxford English Dictionary defines the term “personal” as meaning “Of, pertaining to, concerning, or affecting the individual person or self (as opposed, variously, to other persons, the general community, etc., or to one’s office rank, or other attributes); individual; private one’s own” (The Oxford English Dictionary, 2^nd ed., s.v. “personal”).  Whereas the word “characteristic”, in the same dictionary, is stated to mean “that serves to indicate the essential quality or nature of persons or things, displaying character, distinctive, typical” (The Oxford English Dictionary, 2^nd ed., s.v. “characteristic”).  For its part, Le Petit Robert defines the term “personnel” as meaning “qui concerne une personne, lui appartient en propre” (Le Petit Robert, 1992, s.v. « personnel ») and the word “caractéristique” as meaning “qui constitue un élément distinctif reconnaissable” (Le Petit Robert, 1992, s.v. « caractéristique »). 

[19]                       Taking into account the plain meaning definition of “personal characteristic” (“caractéristique personnelle” en français) as per the Oxford English Dictionary and Le Petit Robert and that the case law establishes that permanency or immutability is an essential feature of a personal characteristic, it is impossible for me, given the particular facts in the case, to find that receipt of social assistance is a personal characteristic of the applicant.  The applicant is 19 years old.  She has stated in her affidavit that she is on social assistance because she does not speak English well enough to allow her to work in Canada (Applicant’s Record, Applicant’s Affidavit, page 13, paragraphs 9 and 13).  The applicant, however, also states in her affidavit that she has been studying English at Camosun College in Victoria since January 2005 (Applicant’s Record, Applicant’s Affidavit, page 13, paragraph 8).  Given the applicant’s young age, and the fact that she is studying English indicates that she wishes to be able to work in Canada and thus get off social assistance.  Consequently, the applicant’s receipt of social assistance cannot be considered a personal characteristic as receipt of social assistance is not an essential quality that constitutes a recognizable and distinctive part of her person as the dictionary definition demands nor does receipt of social assistance appear to be permanent or immutable in the case of the applicant as the case law requires.  In reality, the applicant’s receipt of social assistance appears to be nothing more than a stage in her process of becoming established in Canada that she began upon becoming a permanent resident in April 2003. 

[20]                       Moreover, another indicator that receipt of social assistance cannot be considered a personal characteristic is that by its very focus social assistance is designed to assist people temporarily so that they may become self-sufficient.  In principle, being on social assistance is not a societal objective or a way of life, but rather was developed to aid individuals in becoming financially independent.  The British Columbia Ministry of Employment and Income Assistance, the Ministry responsible for social assistance in British Columbia, states in their publication “Guide to Employment Assistance” (British Columbia Ministry of Employment and Income Assistance, “Your Guide to Employment Assistance”, February 2006):

BC Employment and Assistance is an income- and asset-tested program intended to assist people temporarily while they find work, and to assist those who are unable to fully participate in the workforce. 

Personal responsibility and active participation are the key principles of BC Employment and Assistance.  Employment applicants are expected to look for work before they receive assistance, and people receiving income assistance are expected to complete an Employment Plan, seek work, and participate in job placement and job training programs so they may reach their goal of self-reliance.  

[my emphasis]

This being said, there may be some situations where social assistance has a root in permanency, but this is not the true of the situation described by the evidence presented by both parties in the case at hand. 

[21]                       As stated above (see paragraph 19 of this decision), there are no indicators suggesting that the applicant’s receipt of social assistance will be long term or that her recent receipt of social has become an essential recognizable and distinctive quality that constitutes part of her person and thus a personal characteristic.  This situation is distinguishable from Falkiner as in that case the individuals concerned had a long history of receipt of social assistance combined with other factors, which contributed to them being discriminated against.  The Court of Appeal for Ontario in Falkiner found that subparagraph 1(1)(d)(iii) of Regulation 366 of the Family Benefits Act, R.S.O. 1990, c. F-2, discriminated on the grounds of sex, marital status and the receipt of social assistance.  In contrast to Falkiner, in the case at hand the only ground for discrimination alleged is that of receipt of social assistance, and there is no indication in the record that the applicant’s receipt of social assistance is of any permanency.   

[22]                       I am therefore of the opinion that the applicant’s receipt of social assistance is not a personal characteristic under the first branch of the Law test.   Nonetheless, I will undertake a review of the other two prongs of the Law test for the sake of completeness. 

(b)   Is the differential treatment under paragraph 133(1)(k) based on one or more enumerated or analogous grounds? 

[23]                       Receipt of social assistance is not an enumerated ground under subsection 15(1) of the Charter.

[24]                       However, the Supreme Court in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at paragraphs 6-7, recognized that subsection 15(1) not only protects against discrimination on enumerated grounds, but also protects against discrimination on analogous grounds. 

¶ 6     I believe also that it is important to note that the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances. For example, Stone J. writing in 1938, was concerned with religious, national and racial minorities. In enumerating the specific grounds in s. 15, the framers of the Charter embraced these concerns in 1982 but also addressed themselves to the difficulties experienced by the disadvantaged on the grounds of ethnic origin, colour, sex, age and physical and mental disability. It can be anticipated that the discrete and insular minorities of tomorrow will include groups not recognized as such today. It is consistent with the constitutional status of s. 15 that it be interpreted with sufficient flexibility to ensure the "unremitting protection" of equality rights in the years to come.

¶ 7      While I have emphasized that non-citizens are, in my view, an analogous group to those specifically enumerated in s. 15 and, as such, are entitled to the protection of the section, I agree with my colleague that it is not necessary in this case to determine what limit, if any, there is on the grounds covered by s. 15 and I do not do so.

[25]                       To help in determining what grounds for discrimination constitute an analogous ground, the Supreme Court provides the following guidelines in Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 60:

An analogous ground may be shown by the fundamental nature of the characteristic: whether from the perspective of a reasonable person in the position of the claimant, it is important to their identity, personhood, or belonging.  The fact that a characteristic is immutable, difficult to change, or changeable only at unacceptable personal cost may also lead to its recognition as an analogous ground: Miron v. Trudel, [1995] 2 S.C.R. 418, at para. 148; Vriend v. Alberta, [1998] 1 S.C.R. 493, at para. 90.  It is also central to the analysis if those defined by the characteristic are lacking in political power, disadvantaged, or vulnerable to becoming disadvantaged or having their interests overlooked: Andrews, supra, at p. 152; Law, supra, at para. 29.  Another indicator is whether the ground is included in federal and provincial human rights codes: Miron, supra, at para. 148.  Other criteria, of course, may also be considered in subsequent cases, and none of the above indicators are necessary for the recognition of an analogous ground or combination of grounds: Miron, supra, at para. 149.

[my emphasis]

[26] The applicant submits that receipt of social assistance is an analogous ground for two reasons: first, those in receipt of social assistance have been recognized as in need of protection under numerous human rights legislation (Human Rights Code, R.S.B.C. 1996, c.210, s.10; Human Rights Code, R.S.O. 1990, c. H-19, s.2; Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-19, s.4) ; and second, the Court of Appeal for Ontario in Falkiner recognized receipt of social assistance as an analogous ground in what concerned section 15 of the Charter.

[27]                       This being said, as stated above, the current situation can be differentiated from Falkiner (see paragraph 21 of this decision).  Given the facts in this case, it cannot be found that receipt of social assistance is an immutable ground, as recognized by Corbière, as there is no indication in the motion records that the applicant will be dependent on social assistance permanently or on a somewhat long term basis, in fact all indicators point to the fact that she will become self-sufficient as soon as her English improves. 

(c)    Does the differential treatment discriminate in a substantive sense?

[28]                       I would like to reiterate before continuing that as my analysis under the first two prongs of the Law test has enabled me to determine that receipt of social assistance is not a personal characteristic nor an analogous ground under section 15 of the Charter an analysis of the third prong of the Law test is not necessary.   This being said, I will undertake an analysis under the third prong of the Law test so that this decision addresses the issues raised by the parties in the most comprehensive manner possible. 

[29]                       Not all distinctions, even on an enumerated or an analogous ground amount to discrimination within the meaning of section 15 (Corbière v. Canada, above, paragraph 8).  Only a formal distinction on a personal characteristic which is considered an analogous ground and has a purpose or an effect that is demeaning to human dignity is discriminatory within the meaning of the Charter’s section 15 equality guarantee.

[30]                       In determining whether a formal distinction discriminates in a substantive sense, or in other words violates essential human dignity, the contextual factors enumerated by the Supreme Court in Lovelace v. Ontario, [2000] 1 S.C.R. 950, must be considered.  These contextual factors are the following (Lovelace v. Ontario, above, paragraph 68):

there are four contextual factors which provide the basis for organizing the third stage of the discrimination analysis, they are: (i) pre-existing disadvantage, stereotyping, prejudice, or vulnerability, (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity.

[31]                       These contextual factors must be construed and examined from the view of the reasonable person in a situation similar to that of the applicant, yet the focus of the contextual inquiry must be both subjective and objective.  As the Supreme Court noted in Law (Law v. Canada, above, paragraph 88):

the relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.

(i)                  Pre-existing disadvantage, stereotyping, prejudice or vulnerability

[32]                       People in receipt of social assistance have been recognized as in need of protection from discrimination in the human rights legislation of various provinces, including Ontario, British Columbia and Alberta (Human Rights Code, R.S.B.C. 1996, c.210, s.10; Human Rights Code, R.S.O. 1990, c. H-19, s.2; Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-19, s.4).

(ii)    Correspondence

[33]                       In what concerns immigration the legislator has attempted to carefully balance the purposes of IRPA listed in section 3(1).  The legislator by enacting paragraph 133(1)(k) of IRPR was trying to balance the purposes listed in paragraphs 3(1)(a), 3(1)(c) and 3(1)(d) of IRPA, namely those relating to the economic benefits of immigration and the importance of family reunification.  These paragraphs state the following:

[34]                       Taking into account the importance of reunification with one’s spouse, common law partner or dependent child, the legislator has tailored IRPA so that the low income cut off for sponsorship would not apply to the sponsorship of these family members (see subsection 133(4) of IRPR). In other words, a person with no income or assets can sponsor their spouse, common law partner or dependent children’s immigration application as long as they undertake to provide for the basic requirements of all individuals they sponsor (see paragraph 36 of this decision for further details on this undertaking).   

[35]                       This being said, the legislator did not determine that the economic benefits of immigration play no role in what concerns sponsorship of spouses, common law partners and dependent children.  By enacting paragraph 133(1)(k) of IRPA the legislator tried to balance the great importance of a sponsor’s unification with their spouse, common law partner or dependent children with the goal of pursuing the economic benefits that derive from immigration.  Through the exemption of the low income cut off (see subsection 133(4) of IRPR) for sponsorship of spouses, common law partners and dependent children and the existence of paragraph 133(1)(k) the legislator established that they are willing to assume that an individual will be able to support their very close family members without assistance if they are currently self-sufficient, thereby promoting close family unification, but presumes that those in need of social assistance would not be able to support their close family as they are not able to support themselves.  Moreover, the ban on sponsorship for those in receipt of social assistance was created by the legislator to particularly address the fact that the State should not have to assume the financial burden of such sponsorship. 

Based on the review of documentation on file, it appears that some NGOs suggested that the Social Assistance Bar be removed altogether.  This alternative was considered, but the lack of any provision which required a sponsor to support their family members if required would be unfair to Canadian taxpayers, who would have to bear the burden of Family Class immigrants who are not self-sufficient.  This alternative would not have been supported by provinces who bear the responsibility of providing social services in addition to other integration costs for those who cannot support themselves.

[Respondent’s Record, Christie Affidavit, page 10]

[36]                       The prerequisite that one is able to support themselves before they are able to sponsor family members is reinforced by Part G of the Application to Sponsor and Undertaking Form, a form that must be filled out by all potential sponsors.  Part G states that regardless of income a sponsor must undertake (Application to Sponsor and Undertaking Form, Certified Tribunal Record, page 19):

¼to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada if they are not self-supporting.  I promise to provide food, clothing, shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care, eye care and other health needs not provided by public health care.  I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.

[37]                       By signing the Application to Sponsor and Undertaking Form, a sponsor accepts to support all persons they sponsor.  The fact that a person is on social assistance demonstrates that they are unable to provide for their own necessities and thus it necessarily follows that they would be unable to provide for any person they sponsor.  

[38]                       The Supreme Court stated in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429:

The legislator is entitled to proceed on informed general assumptions without running afoul of s. 15, Law, at para. 106, provided these assumptions are not based on arbitrary and demeaning stereotypes.

In the present case, I believe that the presumption that those on social assistance cannot provide for any person they may sponsor without resorting to the State for assistance is an informed general assumption made by the legislator.  Such an assumption does not reflect, as the applicant suggests, the stereotypical view that people who receive social assistance are less worthy individuals (Applicant’s Further Memorandum at paragraph 52) but instead is based on an informed general assumption that an individual on social assistance cannot provide the necessary financial support to aid a new immigrant to establish himself in Canada.   

[39]                       The applicant claims that withholding the right to sponsor one’s spouse does not recognize the potential that the sponsored spouse may be able to earn an income, which could result in the sponsor getting off social assistance.  The alleged failure to recognize the earning potential of the sponsored spouse, the applicant alleges, reinforces and perpetuates the disadvantage already experienced by recipients of social assistance.  There is no evidence on file that the applicant’s spouse would be able to find work if this sponsorship application was granted.  The evidence is that while in Montreal, Mr. Cosma was working for an employer who was close to the family, however since the expiration of his temporary work visa, the family has moved from Montreal, Quebec to Victoria, British Columbia.  As was said before, the evidence is silent on the potential employability of Mr. Cosma in Victoria.   In principle, I recognize that there may be cases where once the sponsored spouse obtains status in Canada the sponsor can get off social assistance.  This being said, the Supreme Court in Gosselin determined that perfect correspondence between a program and the social reality of the claimant group is not required to find that a challenged provision complies with section 15 of the Charter.  As Chief Justice McLachlin stated in Gosselin (Gosselin v. Quebec (Attorney General), above at paragraph 55):   

Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required to find that a challenged provision does not violate the Canadian Charter.  The situation of those who, for whatever reason, may have been incapable of participating in the programs attracts sympathy.  Yet the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group.  As Iacobucci J. noted in Law, supra, at para. 105, we should not demand “that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter”.  [¼] No matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable.  The fact that some people may fall through a program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1).

[40]                       As stated above, it is possible that in some cases the legislator’s assumptions underlying the social assistance bar, namely paragraph 133(1)(k) of the IRPR, may not be accurate.  For this exact reason, namely to make Canada’s immigration system correspond as closely as possible to the different realities faced by permanent residents and Canadian citizens,  the legislator has contemplated and built into the immigration system an alternative method of reuniting families that would otherwise not be possible due to receipt of social assistance.  Pursuant to section 25 of IRPA, the Minister of Citizenship and Immigration can permit a sponsorship, even though a sponsor is in receipt of social assistance, on the basis of humanitarian and compassionate grounds.  Citizenship and Immigration Canada in their Processing Applications to Sponsor Members of the Family Class manual (Inland Processing Manual 2 – IP2 at 5.28, Table 15) specifically states that:

Since receipt of social assistance demonstrates an inability to provide for one’s own basic requirements, the recipient would be unable to support other family members, including spouse, common-law or conjugal partners and dependant children.  The sponsor may be eligible once social assistance is discontinued.  This bar to sponsorship may, upon request by the foreign national, be waived for humanitarian and compassionate reasons or public policy provided the sponsor requests that the application continue despite their ineligibility.

Moreover, it is also possible that instead of being sponsored by their spouse an individual can apply independently for permanent residence namely as an economic migrant and benefit from additional selection points on the basis of their close relationship with a Canadian citizen or permanent resident.  And finally, even where a humanitarian and compassionate ground application is refused and where economic class immigration is not possible, a sponsorship application can always be remade once the sponsor is no longer in receipt of social assistance.  In the case of sponsorship of a spouse, common law partner or dependent child such a sponsorship application can be made even if the minimum income requirement under subsection 133(4) of the IRPR is not met, once the sponsor is no longer in receipt of social assistance, the whole subject to a written undertaking duly signed (see paragraph 36 of this decision).      

(iii)               Ameliorative Purpose or effect of paragraph 133(1)(k)

[41]                       This third contextual factor is neutral in the present case as the impugned regulation was not designed to improve the condition of any one group. 

(iv)              Nature and Scope of the Interest affected by paragraph 133(1)(k) of IRPR

[42]                       It has been noted by the Supreme Court of Canada that an interest will be more adversely affected in cases where there is complete exclusion or non-recognition as opposed to cases where the legislative distinction between the group in question recognizes or accommodates the group to an extent, but is more restrictive than one would like (Egan v. Canada, [1995] 2 S.C.R. 513 at 556).

The discriminatory calibre of a particular distinction cannot be fully appreciated without also evaluating the constitutional and societal significance of the interest(s) adversely affected. Other important considerations involve determining whether the distinction somehow restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society (e.g. voting, mobility). Finally, does the distinction constitute a complete non-recognition of a particular group? It stands to reason that a group's interests will be more adversely affected in cases involving complete exclusion or non-recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like.

[emphasis in the decision]

[43]                       It is therefore extremely relevant that the legislator has consciously provided mechanisms whereby sponsors on social assistance can apply for relief from the provisions of paragraph 133(1)(k) if the bar from sponsorship would operate unfairly in their particular circumstances, as discussed above (see paragraph 40 of this decision).  

[44]                       The Federal Court of Appeal in de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, a case dealing with paragraph 117(9)(d) of the IRPR which precludes an applicant from sponsoring a person not declared to the Minister at the time the sponsor was granted permanent resident status, determined that the existence of section 25 of IRPA was a relevant factor in determining that paragraph 117(9)(d) was valid and did not violate the Charter (de Guzman v. Canada, above at paragraphs 49 and 52):

¶ 49     Nor does paragraph 117(9)(d) preclude other possible bases on which Ms de Guzman's sons may be admitted to Canada. In particular, they could apply to the Minister under section 25 of IRPA for a discretionary exemption from paragraph 117(9)(d), or for permanent resident status. Discretion may be exercised positively when the Minister is of the opinion that it is justified by humanitarian and compassionate circumstances relating to the applicant, taking into account the best interests of a directly affected child, or by public policy considerations. Subsection 24(1) also confers a wide discretion on the Minister to grant temporary permits when circumstances so warrant. In addition, the sons, who are now young adults, may always apply for visas to come to Canada in the economic class.

[¼]

¶ 52     In these circumstances, I am not persuaded that Ms de Guzman has been deprived of the constitutional rights to liberty and security of the person guaranteed by section 7 of the Charter. Accordingly, it is not necessary to consider whether paragraph 117(9)(d) is either in accordance with the principles of fundamental justice, or saved by section 1.

[45]                       Although de Guzman deals with section 7 of the Charter, I believe the finding of the Federal Court of Appeal is relevant to the case at hand.  The fact that the legislator provided the Minister with discretion in applying the provisions of IRPA to take into account humanitarian and compassionate circumstances and public policy considerations demonstrates that the legislator recognized that those on social assistance as well as others disadvantaged by the strict wording of IRPA can be accommodated by the Minister where strict interpretation of IRPA would lead to unjust results.

[46] The ability to seek relief from the bar on sponsorship for those in receipt of social assistance is in my opinion proof that this bar is not designed, nor would a reasonable person find it offends a person’s dignity.  Given the analysis conducted above, I am of the opinion that the applicant’s claim of discrimination fails on all branches of the Law test as the differential treatment of those in receipt of social assistance is not on the basis of a personal characteristic, receipt of social assistance cannot be considered an analogous ground and the impugned provision does not discriminate in a substantive sense as the effect of paragraph 133(1)(k) of the IRPR is not demeaning to the applicant or others in receipt of social assistance. 

IV.  Conclusion

[47]                       Given that the discrimination claim fails on all three parts of the Law test, I find that paragraph 133(1)(k) of the IRPR does not violate section 15 of the Charter.  Consequently, I will not deal with the remaining issues.

[48]                       As I have found that paragraph 133(1)(k) of the IRPR does not discriminate within the meaning of section 15 of the Charter this application for judicial review is denied. 

[49]                       The applicant and the respondent both suggest that the following question be certified:

Whether paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter in that it discriminates on the basis of the analogous ground of receipt of social assistance?

I agree that this is a question of serious importance and as such I will certify the question.  For the reasons given above, my answer to this question is “no”.

JUDGMENT

THIS COURT ORDERS THAT:

-     The application for judicial review is dismissed.

-     The following question is certified “Whether paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter in that it discriminates on the basis of the analogous ground of receipt of social assistance?”

“Simon Noël”

Judge

                                                             FEDERAL COURT

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                        IMM-184-06

STYLE OF CAUSE:                      NEILA ROSA VELASQUEZ GUZMAN  v.                                                                         MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                 Vancouver, British Columbia

DATE OF HEARING:                    August 29, 2006   

REASONS FOR ORDER

AND ORDER                                  The Honourable Mr. Justice Simon Noël

DATED:                                           September 28, 2006

APPEARANCES:

Mr. Dominique Roelants                                                      for Applicant       

Ms. Sandra Weafer                                                              for Respondent

SOLICITORS OF RECORD:

Barrister/Solicitor                                                                  for Applicant

Nanaimo, British Columbia 

John H. Sims, Q.C.                                                               for Respondent

Deputy Attorney General of Canada