Date:
20121220
Docket:
T-1706-10
Citation:
2012 FC 1530
Ottawa, Ontario,
December 20, 2012
PRESENT: The Honourable Mr. Leonard J. Mandamin
BETWEEN:
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CANADIAN COUNCIL
ON SOCIAL
DEVELOPMENT, COMMUNITY SOCIAL
PLANNING COUNCIL
OF TORONTO,
SOCIAL PLANNING
COUNCIL OF
WINNIPEG
COMMUNITY DEVELOPMENT
HALTON, CANADIAN
ARAB FEDERATION,
ONTARIO
COUNCIL OF AGENCIES
SERVING
IMMIGRANTS, COUNCIL OF
AGENCIES SERVING
SOUTH ASIANS,
CANADIAN MENTAL
HEALTH
ASSOCIATION – TORONTO, AFRICAN
CANADIAN LEGAL
CLINIC, NATIONAL
ABORIGINAL
HOUSING ASSOCIATION,
SOUTH ASIAN
LEGAL CLINIC OF
ONTARIO,
METRO TORONTO CHINESE &
SOUTHEAST ASIAN
LEGAL CLINIC
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Applicants
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and
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ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application by the Canadian Council on Social Development and
eleven other civil society organizations for a declaration that “the failure to
include questions pertaining to race, ethnic or national origin, disability and
Aboriginal ancestry in the 2011 Census breaches section 15(1) of the Charter
and that this breach is not justified under section 1 of the Charter.”
[2]
For the reasons that follow, this application must be dismissed.
[3]
Some legal context is necessary to situate this application. The
requirement that the government conduct a census arises from our Constitution.
In particular, section 8 of the Constitution Act, 1867 (UK), 30 & 31
Vict, c 3, reprinted in RSC 1985, App II, No 5, proclaims that a “Census of the
Population of Canada” shall be taken in the year 1871 “and in every Tenth Year
thereafter,” in which “the respective Populations of the [then] Four Provinces
shall be distinguished.” The census is only mentioned again in the
Constitution for its relevance to readjustments of representation in the House
of Commons (Constitution Act, 1867, s 51), a long-since obsolete and
repealed requirement that Canada pay to each province certain sums, partly on a
per-capita basis, “for the Support of their Governments and Legislatures” (Constitution
Act, 1867, s 118), and the procedure for amending the Constitution (Constitution
Act, 1982, s 38, being Schedule B to the Canada Act 1982 (UK), 1982,
c 11), all of which only require that the census provide an accurate counting
of heads geographically. Section 91 of the Constitution Act, 1867 gives
the Parliament of Canada exclusive legislative authority over “The Census and
Statistics.”
[4]
Pursuant to its authority under the Constitution, Parliament enacted the
Statistics Act, RSC, 1985, c S-19. Certain provisions are relevant to
this application:
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19. (1) A census of population of Canada shall be taken by
Statistics Canada in the month of June in the year 1971, and every fifth year
thereafter in a month to be fixed by the Governor in Council.
(2) The census of population shall be taken in such a
manner as to ensure that counts of the population are provided for each
federal electoral district of Canada, as constituted at the time of each
census of population.
(3) A reference in any Act of Parliament, in any order,
rule or regulation or in any contract or other document made thereunder to a
decennial census of population shall, unless the context otherwise requires,
be construed to refer to the census of population taken by Statistics Canada
in the year 1971 or in any tenth year thereafter.
[…]
21. (1) The Governor in Council shall, by order, prescribe
the questions to be asked in any census taken by Statistics Canada under
section 19 or 20.
(2) Every order made under subsection (1) shall be
published in the Canada Gazette not later than thirty days after it is made.
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19. (1) Le recensement de la population du Canada est fait
par Statistique Canada à tous les cinq ans, à compter de juin 1971, dans le
mois qui est fixé par le gouverneur en conseil.
(2) Le recensement de la population est fait de façon à
veiller à ce que le dénombrement de la population soit établi pour chaque
circonscription électorale fédérale du Canada, telle qu’elle est constituée
lors du recensement.
(3) Lorsque, dans une loi fédérale ou dans une ordonnance,
un décret, un arrêté, une règle, un règlement ou dans un contrat ou autre
document qui en découle, il est fait mention d’un recensement décennal de la
population, cette mention doit, sauf si le contexte s’y oppose, être
interprétée comme désignant le recensement de la population fait par
Statistique Canada en 1971 ou dans la dernière année de l’une des décennies
subséquentes.
[…]
21. (1) Le gouverneur en conseil prescrit, par décret, les
questions à poser lors d’un recensement fait en vertu des articles 19 ou 20.
(2) Chaque décret pris en vertu du paragraphe (1) est
publié dans la Gazette du Canada au plus tard trente jours après qu’il a été
pris.
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[5]
Pursuant to subsections 19(1) and 21(1) of the Statistics Act,
Order in Council 2010-1077 (“Order in Council”), published in the Canada
Gazette on August 21, 2010, prescribed both the timing of and the questions to
be asked in the 2011 census. In a departure from recent practice, the Order in
Council prescribed only one form of census, as opposed to both a “short-form”
and a “long-form” census. The long-form census had been given to fewer
households in Canada and canvassed the population on a broader range of
population characteristics than the short-form census. The 2011 census
contains questions relating to age, sex, and marital status, but does not
address, as the long-form census previously did, race, ethnic or national
origin, disability and Aboriginal ancestry. Those characteristics will be
canvassed by the government in a separate, non-mandatory survey called the
National Household Survey, authorized by section 8 of the Statistics Act.
[6]
It is because of the inclusion of questions pertaining to age, sex, and
marital status that these Applicants seek a declaration, as stated above, “that
the failure to include questions pertaining to race, ethnic or national origin,
disability and Aboriginal ancestry in the 2011 Census breaches section 15(1) of
the Charter and that this breach is not justified under section 1 of the
Charter.” Despite some inconsistency, the Applicants eventually clarified at
the hearing of this application that the discrimination they are claiming is on
the face of the Order in Council and that this application is not about
any “adverse effect discrimination” that may result from, for example,
unreliable data collection in the new scheme briefly described above, as was
argued unsuccessfully in Native Council of Nova Scotia v Canada (Attorney
General), 2011 FC 72 [Native Council of Nova Scotia], and Fédération
des communautés francophones & acadienne du Canada c Canada (Procureur
général), 2010 CF 999:
Counsel for the applicants: “That
[the arguments in those two cases] was the adverse effect argument, Justice.
We are not making that argument. I want to be very clear here. This is a
direct discrimination argument.”
Discrimination
under section 15(1)
[7]
The parties agree that the test for discrimination under section 15(1)
of the Charter was most recently confirmed by the Supreme Court of
Canada in R v Kapp, 2008 SCC 41 at paragraph 41, as follows:
1.
Does the law create a distinction based on an enumerated or analogous
ground?; and
2.
Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
[8]
The Applicants rely on Vriend v Alberta, [1998] 1 S.C.R. 493 [Vriend]
regarding the first prong of the test, and argue:
“In sum, because of its
underinclusiveness, the 2011 Census creates an express distinction on the [sic]
between age, marital status and sex and ethnic origin, Aboriginal ancestry and
disability. Though this distinction does not cause members of these groups to
be entirely deprived of all benefits under the Statistic Act [sic], it
prevents them from being counted according to their race, disability and
Aboriginal ancestry. As such, the Applicants have met the first aspect of the
equality analysis.”
[9]
Beyond the faulty premises implied from that excerpt, the fatal and
obvious flaw in the Applicants’ argument is that it equates a distinction between
protected or analogous grounds with a distinction based on a protected
or analogous ground.
[10]
In Vriend, the exclusion of “sexual orientation” as a ground for
complaint under Alberta’s human rights legislation was found to have a
disproportionate impact on homosexuals compared to heterosexuals: See para 82.
Even though the impugned legislation in that case was neutral on its face,
because of its effects a distinction was created that was based on a
protected or analogous ground, namely sexual orientation: See paras 86 and
88. Eldridge v British Columbia (Attorney General), [1997] 3 S.C.R. 624 [Eldridge],
also relied on by the Applicants, involved the discriminatory effects, as
between deaf and hearing persons, of the translation services available at
hospitals in British Columbia, thus, again, involving a distinction based on
a protected or analogous ground, namely physical disability: See paras 55 and
60.
[11]
The Order in Council in this case simply does not draw any explicit
distinction based on an enumerated or analogous ground. It is within, not
between grounds that one must look. A driver licensing regulation prescribing
that a driver’s date of birth (i.e. age), but not religion, be reflected on the
face of drivers’ licenses does not draw any explicit distinction based on an
enumerated or analogous ground; rather, the distinction is between grounds, and
is not offensive on that basis to the equality guarantee in section 15 of the Charter.
On the other hand, if the driver licensing regulation prescribed that
membership in a specific religion be displayed, there would be an explicit
distinction based on an enumerated or analogous ground, namely religion.
Justice Zinn also readily came to the conclusion that there is no explicit
distinction in the Order in Council based on an enumerated or analogous ground
in Native Council of Nova Scotia: See para 46.
[12]
Of course, even though no explicit distinction based on an enumerated or
analogous ground is drawn on the face of the Order in Council, it may very well
be that a distinction is created by the effects of that order, as was the case
in both Vriend and Eldridge. However, as I have tried to make
very clear above, the Applicants in no uncertain terms abandoned any argument
that the Order in Council was discriminatory in light of its adverse effects.
Thus, no distinction based on the effects of the Order in Council was advanced,
much less proven in this application.
[13]
This application therefore fails to meet the first prong of the section
15(1) test and is dismissed on that basis.
The application is also out of
time
[14]
The Respondent Attorney General raised the preliminary issue that this
application was launched outside of the thirty day time limit pursuant to
subsection 18.1(2) of the Federal Courts Act, RSC 1985, c F-7,
and should therefore be dismissed for lateness.
[15]
Subsection 18.1(2) of the Federal Courts Act provides as follows:
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(2) An application for judicial review in respect of a
decision or an order of a federal board, commission or other tribunal shall
be made within 30 days after the time the decision or order was first
communicated by the federal board, commission or other tribunal to the
office of the Deputy Attorney General of Canada or to the party directly
affected by it, or within any further time that a judge of the Federal Court
may fix or allow before or after the end of those 30 days.
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(2) Les demandes de contrôle judiciaire sont à présenter
dans les trente jours qui suivent la première communication, par l’office
fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur
général du Canada ou à la partie concernée, ou dans le délai supplémentaire
qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces
trente jours, fixer ou accorder.
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[Emphasis added]
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[16]
The Respondent raised the issue of the time limitation in his factum
filed on May 9, 2011. The Applicants did not exercise their right of reply.
The Applicants first took any position on this issue at the hearing of this
application on November 23, 2011, which was that “based on [their]
characterization of the application, [they did] not need a motion to extend.”
In particular, while the Respondent’s authorities involved “specific
administrative decisions” against the particular parties in those proceedings,
theirs was an application involving “the exercise of general administrative
authority and it’s not the same kind of issue.”
[17]
If I have understood the Applicants’ submission on this issue correctly,
they argue that because Order in Council 2010-1077 was not an order made
against them directly, or specifically identifying them, the time limitation in
subsection 18.1(2) of the Federal Courts Act does not apply to their
application for judicial review of that order.
[18]
There is simply no authority for that proposition. On the contrary,
according to the plain wording of subsection 18.1(2), the thirty day window
begins when the “federal board, commission or other tribunal [communicates the
decision or order] … to the party directly affected by it [emphasis
mine].” The Applicants must be parties “directly affected” by the Order in
Council, for otherwise they would have no standing under the Federal Courts
Act to bring the within application:
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18.1 (1) An application for
judicial review may be made by the Attorney General of Canada or by anyone
directly affected by the matter in respect of which relief is sought.
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18.1 (1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la
demande.
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[Emphasis added]
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[19]
As I mentioned above, the Order in Council was published in the Canada
Gazette on August 21, 2010, and it was not until two months later (i.e. twice
the time limit) that the within application was launched.
[20]
I am not convinced that the holding in Krause v Canada, [1999] FCJ No 179, 86 ACWS (3d) 4 (CA), a case referred to by the Applicants, acts so as
to prevent the application of the time limitation to this application as
framed. Critically, in Krause, the Federal Court of Appeal held that
the Applicants did not seek to impugn any particular “decision or order:” See
paras 20 and 23. Here, the Applicants seek nothing other than to impugn
through declaration a discrete order – the Order in Council – on the basis that
it is discriminatory on its face. Had this application been about adverse
effect discrimination, on the other hand, Krause might be more apt since
evidence of any adverse effects might not be available, and thus the
application not ripen, until well after the publication of the Order in Council
and the thirty day window following that. In this case, however, as I have
said, the alleged discrimination is on the face of the Order in Council.
Certainty demands that where this is the case, the application be brought
promptly, within the timeframes created by the Federal Courts Act.
[21]
The Order in Council, made pursuant to subsections 19(1) and 21(1) of
the Statistics Act, is undoubtedly an “order” “of a federal board,
commission or other tribunal” pursuant to subsection 2(1) of the Federal
Courts Act, which provides:
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“federal board, commission or other tribunal” means any
body, person or persons having, exercising or purporting to exercise
jurisdiction or powers conferred by or under an Act of Parliament or by
or under an order made pursuant to a prerogative of the Crown, other than the
Tax Court of Canada or any of its judges, any such body constituted or
established by or under a law of a province or any such person or persons
appointed under or in accordance with a law of a province or under section 96
of the Constitution Act, 1867;
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« office fédéral » Conseil, bureau, commission ou autre
organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé
exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une
ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour
canadienne de l’impôt et ses juges, d’un organisme constitué sous le régime
d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées
aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle
de 1867.
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[Emphasis added]
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[22]
For greater certainty, the Federal Court of Appeal recently confirmed in
Attorney General (Canada) v Larkman, 2012 FCA 204 [Larkman], that
“[a] thirty day deadline applies to applications for judicial review seeking to
set aside a[n] […] Order in Council,” “made under a federal statutory regime:”
see paras 2 and 11. Although the particular relief sought in that case was certiorari
(i.e. setting aside), certiorari and “declaratory relief” co-exist
undistinguished in paragraph 18(1)(a) of the Federal Courts Act, and
subsection 18(3) of the same statute provides that all the relief described in
subsection 18(1) “may be obtained only on an application for judicial review
[emphasis mine].” As excerpted above, the time limitation applies in respect
of all “application[s] for judicial review in respect of a decision or
an order [emphasis mine].” Thus, the plain meaning of the Federal Courts
Act is that relevant to whether the time limitation provided in subsection
18.1(2) applies is whether the relief sought is “in respect of a decision or
order,” not what type of relief is sought.
[23]
I am therefore satisfied that the time limitation in subsection 18.1(2)
applies to this application as framed. Having determined that, it must be
mentioned that this Court nevertheless has broad discretion to allow an
extension of time before or after the expiry of the limitation period,
according to the following well-established test:
(1)
Did the moving party have a continuing intention to pursue the application?
(2)
Is there some potential merit to the application?
(3)
Has the Crown been prejudiced from the delay?
(4)
Does the moving party have a reasonable explanation for the delay?
See: Larkman, above, at para
61; Muckenheim v Canada (Employment Insurance Commission), 2008 FCA 249.
[24]
The burden to satisfy this test is, and was the Applicants’. As
mentioned above, the Respondent Attorney General took the position in his
factum and also at the hearing of this application that the time limitation
applied to this application. He was right. However, presumably because the Applicants
have taken the position that they “do not need a motion to extend,” they have
neither brought such a motion nor adduced any evidence in this application to
satisfy the above-mentioned discretionary test, either before or after the
hearing of this application.
[25]
Because the Applicants did not request an extension of time and adduce
the evidence relevant to the above-mentioned test, I find this application is
out of time.
JUDGMENT
THIS COURT'S JUDGMENT
is that:
1.
This application is dismissed.
2.
The Respondent is awarded its costs which are fixed at $1,500.00,
inclusive of fees, disbursements and taxes.
“Leonard
S. Mandamin”
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