Date: 20091028
Docket: T-157-09
Citation: 2009 FC 1104
Ottawa, Ontario, October 28,
2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
THE ATTORNEY GENERAL
OF CANADA
Applicant
and
FALLAN DAVIS
Respondent
and
CANADIAN HUMAN RIGHTS
COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
[1]
It
was a cold day in November 2005 when matters got out of hand at the Canadian
Border Crossing on Cornwall Island, Ontario. They got so out of
hand that Border guards walked off the job and the Seaway International Bridge to New York State was closed.
They got so out of hand that Teiohontathe Fallan Davis, a young Mohawk woman
who lives on the Akwesasne Reserve located on the island, complained to the
Canadian Human Rights Commission that various officers of the Canadian Border
Services Agency discriminated against her. The Commission appointed an
investigator, endorsed his final report, and has referred the matter to the
Canadian Human Rights Tribunal, which is scheduled to commence its hearing next
month.
[2]
The
Attorney General, on behalf of the Canadian Border Services Agency (CBSA), has
brought an application for judicial review of the Commission’s decision to
refer the complaint to the Tribunal. He submits that the underlying
investigation was neither neutral, nor thorough, as the law requires. More
particularly, it is said that the Commission completely ignored the CBSA’s
detailed criticisms of the investigator’s report. Furthermore it subsequently
came to light that in an earlier draft of his report, the investigator had
recommended that Ms. Davis’ complaint be dismissed.
[3]
Although
the Attorney General raises substantive issues, and although allegations that
several of the CBSA officers on duty that day are racists may have grave
repercussions and must be taken very seriously, I have come to the conclusion
that the CBSA was shown adequate procedural fairness, that the investigation
was thorough enough and that the decision of the Commission to refer the
complaint to the Tribunal, having regard to all the circumstances, was not
unreasonable.
THE FACTS
[4]
The
Mohawk community situated on Cornwall Island, Ontario, also
extends to nearby islands and to the mainland along the south shore of the St.
Lawrence River in Quebec and New York State. The
community is somewhat disdainful of the Canada/United States border. Personal
items bought in the United States and brought onto Cornwall Island by Akwesasne
residents are to be reported to customs officers, but are not subject to duty.
November 18, 2005
[5]
During
the morning of November 18, 2005, Ms. Davis was returning from New York
State
in her old black SUV.
[6]
To
hear her tell it, as she veered towards the passenger lane reserved for
Akwesasne residents, a Customs officer stood in her path and signalled her to
drive into the commercial transport compound. Although asked why, he did not
give any explanation. As she entered the compound she saw a transport truck
under what looked like an x-ray machine festooned with a sign reading “danger radiation”.
She was concerned as this was not where secondary detailed inspections of
passenger vehicles normally take place. She was told to get out of the vehicle
which was then x-rayed and after was dismantled to some extent. She used her
cell phone to call her grandmother in panic. It was cold, she was not allowed
to take shelter, and she was told to “shut up.” There were a number of officers
present. One in particular made a number of remarks such as “you’re definitely
guilty of something…are you moving contraband cigarettes?...” The situation
deteriorated. Ms. Davis said he was trespassing on her territory to which he
replied “it is Canadian Customs land” which she disputed. He said “you know
what our society thinks about you people.”
[7]
All
told, after she was denied shelter and left out in the cold for 45 minutes
notwithstanding that she was inadequately dressed, all that the officers found
were a few items of clothing and toys for her children which had been purchased
that morning at a mall in Massena, New York. When asked
why she did not declare them, she said she had not been given an opportunity to
declare anything.
[8]
Thereafter
a dispute arose as to whether she had to pay duty because she had failed to
declare.
[9]
The
CBSA has a different version of events.
[10]
It
so happened that a mobile Vehicle and Cargo Inspection System (VACIS) was in
operation at the border station that day. In addition to inspecting commercial
vehicles which might be used to carry contraband, there had been a report of a
secret compartment being built into a black SUV. That was why Ms. Davis’
vehicle was selected for inspection, as was at least one other SUV. There was
nothing sinister about directing her vehicle to the commercial trucking area.
The VACIS unit is large and logically was placed there.
[11]
Ms.
Davis was rude and uncooperative to the officers who were all male. She used
extremely profane language and called their sexual orientation and size of
various body bits into question. Although tempers naturally flared, she was always
treated with respect, and no remarks were ever made of an adverse
discriminatory nature.
[12]
Because
of her status Ms. Davis is not obliged to pay duty on personal items, but she
is obliged to report them. They finally gave her the benefit of the doubt that
in the circumstances she had not had the opportunity to make any declaration
and so did not impose any duty.
[13]
No
matter who started what, all agree that Ms. Davis was extremely distraught. She
came to the attention of another Customs officer, a woman, who gave her the
badge numbers of the officers in question “should she be interested in filing a
complaint,” and later told the Commission’s investigator that this behaviour
was entirely consistent with racist remarks previously made by various CBSA
officers staffing the Cornwall Island border crossing.
[14]
As
a result of a telephone call Ms. Davis made on her cell phone, a number of
vehicles carrying members of the community began to gather around the Customs
house. She also threatened to call in the Mohawk Warriors. Fearing for their
safety, the officers left and closed the border.
CANADIAN HUMAN RIGHTS
ACT
[15]
The
purpose of the Canadian Human Rights Act is to give effect, in the
federal sphere, to the principle that all should be able to make for themselves
the lives they are able to and wish to make, without being hindered or
prevented by discriminatory practices based on race, national or ethnic origin,
colour, religion, age, sex and other factors. More particularly section 5
states that it is a discriminatory practice in the provision of services or
facilities customarily available to the general public to differentiate
adversely in relation to any individual on a prohibited ground of
discrimination.
[16]
On
receipt of a complaint the Commission may do a number of things. In accordance
with section 41 and following it may refuse to deal with the complaint if, for
instance, it should be more appropriately dealt elsewhere, if it is beyond the
Commission’s jurisdiction (i.e. not a federal matter), if it is trivial, frivolous,
vexatious or made in bad faith or if it is based on a situation occurring more
than one year earlier.
[17]
In
this case the formal complaint was filed one year and one week after the
incident. However the Commission has the power to extend time which it did as
Ms. Davis had in a less formal way complained to it within the year. The CBSA
does not take issue with that decision.
[18]
There
is no other commission to which to complain, as might be the case if the
officials in question had been members of the RCMP or members of the Military
Police carrying out policing duties.
[19]
The
Commission may propose mediation, which it did in this case. Unfortunately, and
I say this deliberately, Ms. Davis refused. It is unclear whether the CBSA was
given an opportunity to refuse. Certainly it did not advocate mediation.
[20]
The
Commission then appointed its own investigator. At the conclusion of the
investigation, the Act provides that after considering the report the
Commission may either refer the complaint to the Tribunal or dismiss it if
“…satisfied that, having regard to all the circumstances of the complaint, an
inquiry…is warranted…”, or not warranted as the case may be.
STANDARD OF REVIEW
[21]
A
decision of the Commission either to dismiss a complaint or to refer it to the
Tribunal is judicially reviewed on a reasonableness standard (Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190). That means that the Court must show some deference to the
Commission, even if it might have decided differently. However it is a condition
precedent thereto that the Commission, and its investigator, observe the rules
of natural justice; procedural fairness in this case. The investigation had to
be thorough, meaning that the CBSA had to be given a reasonable opportunity to
comment on the case it was facing and the Commission had to be neutral, in the
sense of not being affected by bias. When it comes to procedural fairness, the
Court owes no deference to the Commission. Indeed the Court would be shirking
its duty if it did show deference. See for instance the decision of Mr. Justice
Nadon, as he then was, in Slattery v. Canada (Human
Rights Commission), [1994] 2 F.C. 574.
THE CBSA’S INTERNAL
INVESTIGATION
[22]
Upon
receipt of Ms. Davis’ formal complaint, the Commission sent a copy thereof to
the CBSA and invited comment. The CBSA had already carried out its own
investigation. It made detailed comments on Ms. Davis’ complaint and also
provided the Commission’s investigator with a copy of its own conclusions. I
shall first deal with the CBSA’s investigation.
[23]
The
CBSA’s report states that the VACIS team is only present at the Cornwall Border
Crossing from time to time. It was determined that trucks and SUVs would be
selected for inspection. Automobiles were included because of a previous scan
the VACIS team had performed on an SUV at the request of the RCMP that revealed
a secret compartment.
[24]
Ms.
Davis’ SUV was the first selected. Although the details of the other vehicle
scanned are not stated in the report, and although there is some confusion amongst
officers as to whether it bore Vermont or Virginia plates, the
CBSA provided the Commission’s investigator with the name of the driver of the
other vehicle which bore Vermont plates.
[25]
Ms.
Davis crosses the border a number of times a day using the lane reserved for
Akwesasne residents. The incident was described as follows:
The scan and ensuing examination of Ms.
Davis’s vehicle and her interaction with the CBSA officers quickly escalated in
that Ms. Davis was reportedly belligerent and disrespectful to staff and
finally distraught. As a result of the examination $200.00 of undeclared goods
were discovered. However, the shift superintendent in communication with the
port chief allowed her the benefits of the Akwesasne Remission Order and
allowed her forward without payment of duties and or taxes.
VACIS team members and some Cornwall port staff became fearful
when they perceived their personal safety was in jeopardy due to the continuing
presence and actions of Ms. Davis, a reporter and Ms. Davis’s grandmother. This
resulted in the VACIS team’s request for a police escort off the island as well
as the port staff tendering a refusal to work notice.
[26]
Thereafter
reports were reviewed and statements from those officers involved as well as
Ms. Davis were solicited. However there are some warning signs. “For the
most part staff were cooperative and forthcoming…” (my emphasis). There was
some regret that the VACIS team members had not received a formal briefing from
Cornwall Port Management on local community relations or sensitivities and that
the information they did receive from local Port Officers “…may be tainted by
the Port Officer’s personal beliefs.” The report concluded that since it had
been some time since cross-cultural awareness sessions have been provided, it
would be appropriate to reinstitute these sessions in the hope of eliminating,
or at least limiting, future incidents of this nature.
[27]
However,
the report found that “there is nothing to substantiate Ms. Davis’ allegations
of officer misconduct”, although it was noted that none of the male officers
did anything to diffuse the situation. That conclusion is factually incorrect.
There was evidence to substantiate Ms. Davis’ allegations. The evidence comes
from her own mouth; allegations she immediately repeated to the female Customs
Officer and within her community. On the other hand, there is also evidence
that there was no misconduct on the part of the officers, that evidence coming
from their mouths.
[28]
This
is a credibility issue.
The Commission
Investigator’s Report
[29]
The
report begins by pointing out that the relevant prohibited grounds of
discrimination alleged were race, age and sex. It concludes with the
recommendation pursuant to section 44(3) (a) of the Act that the Commission
request the chairperson of the Tribunal to institute an inquiry into the
complaint because having regard to all the circumstances thereof an inquiry is
warranted. It was stated that the public interest is engaged by this complaint
to the extent that travellers should not be subjected to discrimination due to
their race by CBSA officers.
[30]
The
investigation only focused on race as Ms. Davis had not provided any specifics
of discrimination based on age or sex.
[31]
The
investigator summarized the events at the secondary inspection as alleged both
by Ms. Davis and the officers involved.
[32]
He
noted the CBSA’s position that the crossing on Cornwall Island is
challenging as many of the travellers are Akwesasne residents. Indeed it
appears that some 80% of the crossings from New York State are by
Mohawks. The CBSA had also asserted that the situation was exacerbated by the
Mohawk security officer on duty who is supposed to lend a hand if security
incidents arise, but who did nothing. One person interviewed had arrived at the
scene as a result of one of Ms. Davis’s phone calls. He is said to have told
the investigator that he saw officers intimidating and yelling at Ms. Davis who
was very upset and in tears. This witness was of the opinion that the behaviour
was unbelievable and unacceptable although he did not know if it arose because
of Ms. Davis’ race, age or gender.
[33]
The
report refers to an interview with the female Customs officer, who later left
her employment with the CBSA because she says she was disgusted with the manner
in which “indigenous people” were treated. In an email three days after the
incident she mentioned to the CBSA that she had been told by Ms. Davis that an
officer told her “you know what we think of your society; we will find
something, we know you are guilty just by the way you are acting.” She was of
the opinion that the officer showed a complete lack of cooperation, respect,
integrity and professionalism, and that Ms. Davis should have been told what
was going on rather than being terrorized. She added that CBSA officers assume
that “Indians” are guilty until proven innocent, and that treatment of Mohawks
at the border was absolutely atrocious.
[34]
The
investigator used Ms. Davis’ version of events, which had been immediately
repeated to the female border officer, to say that “Evidence appears to
indicate… that officers made racial comments, that they demonstrated a complete
lack of core values towards the complainant because of her race”.
[35]
He
was of the view that the evidence was not clear as to whether other SUVs were
scanned, or, if they were, whether they were directed to the same area that Ms.
Davis’ was. He suggested that the vehicles targeted were selected from the lane
reserved for Akwesasne residents. He added that Ms. Davis may have behaved
rudely and used foul language with the officers “…as a result of their yelling
and rude manners.”
The CBSA’s Response
[36]
The
Commission sent its investigator’s report to the CBSA and to Ms. Davis for
comment, prior to making its decision. The report is some 12 pages in length
and contains 109 paragraphs. A number of issues were raised in response. The
CBSA complains that the investigator lent great credibility to the former CBSA
employee who was not present during the initial incident and whose
understanding of what was said or done was based on a subsequent conversation
with Ms. Davis. There follows this cutting remark:
In addition, it should be noted that CBSA
has reason to believe that Ms. ____________’s past history with the CBSA would
clearly undermine the reliability of her testimony. However, in the context of
the present complaint, the CBSA cannot disclose personal information
regarding Ms. ____________’s employment or medical history in accordance with
the Privacy Act. As a result, we are faced with a situation where the
CBSA cannot fully explain the reasons why Ms. ‘s
testimony is unreliable.
[My deletion.]
Talk about asking the Commission to reweigh
evidence!
[37]
It
was also submitted that the investigator completely misunderstood the purpose
of the CBSA’s internal review. That complaint may well be correct, but is not
particularly relevant.
[38]
The
CBSA also complained that the investigator failed to consider all the evidence
submitted and often said “the evidence suggests…” without identifying the
witness or why evidence form CBSA witnesses was discarded.
[39]
The
statement that the CBSA declined mediation was challenged. It says it was never
given the opportunity to participate as Ms. Davis had declined mediation.
Although the investigator’s report indicates newspaper clippings were reviewed,
“CBSA is concerned that the articles may have been derived from Mohawk
publications that are blatantly biased against CBSA.” The Commission was
obliged under our Federal Courts Rules to produce its file. Indeed the
newspaper clippings were from Mohawk publications.
[40]
It
was complained that Ms. Davis lacked credibility. No doubt this is a conclusion
drawn from the fact that the CBSA believes its own.
[41]
The
litany of complaints went on.
[42]
Ms.
Davis also made detailed comments.
[43]
In
any event, following receipt of the commentaries, the Commission simply wrote a
form letter stating that it had reviewed the investigator’s report and had
decided to request the chair of the Tribunal to institute an inquiry pursuant
to section 44(3)(a) of the Act because it was “satisfied that, having regard to
all the circumstances, an inquiry is warranted.”
[44]
The
CBSA submits that natural justice required a response to its detailed
objections to the investigator’s report, as otherwise the investigation was not
thorough. For instance, it is suggested that after the CBSA alleged that the
investigator completely misunderstood the purpose of its internal report, the
author thereof should have been interviewed.
[45]
Rule
317 of the Federal Courts Rules requires a tribunal, in this case the
Commission, if requested, which it was, to produce its record. The record
produced indicated that there had been earlier drafts of the investigator’s
report, which were not produced. An order for production was sought. The
Commission first took the position that the drafts were privileged, as a draft
is reviewed by a team which includes a lawyer, but then voluntarily produced
them without Court order. I am not called upon to say whether the drafts would
have been privileged or not. If they were, privilege was waived by voluntary
production. The pertinent draft bears the following notation “Draft for team x
review”. There are a number of handwritten comments being “John’s comments Sept
23/08”. “John” is not identified. The concluding recommendation was: “It is
recommended, pursuant to para. 44(3) (b) of the Canadian Human Rights Act
that the Commission dismiss the complaint because the evidence does not support
the allegations of deferential treatment based on race.” Just under that
paragraph “John” wrote “Bonnie, I think this could go either way”.
[46]
Counsel
for the CBSA engaged in a detailed comparison of the draft with the final
report. During the hearing I expressed considerable concern with this approach,
as earlier drafts of reasons I write, including these reasons, never see the
light of day. Often substantial revisions are made. In this case the female
Border officer, who supports Ms. Davis, was only interviewed by the
Commission’s investigator after the draft report had been prepared. Some
matters were dropped from the first draft as clearly not being relevant.
However other matters were fudged and slanted differently. In the first draft,
it is said that evidence suggested that the foul language began with Ms. Davis
and that although the officers reacted they did not issue any racial epitaphs.
In the final draft evidence indicates that it was their behaviour which may
have caused Ms. Davis to use inappropriate language. In the final version the
investigator believes evidence may suggest that there was racial profiling from
the get-go by singling out Akwesasne residents who were on route to their
reserved lane. These changes may have arisen from a re-reading of interview
notes, or the interview with the former Customs officer may have put a
different perspective on matters. This is not a case where the Commission
published its decision and then changed its mind. In such a case, an
explanation may well be owed. (Canada (Attorney General) v.
Grover,
2004 FC 704, 252 F.T.R. 244).
MS. DAVIS’ CASE
[47]
Ms.
Davis, who represented herself, and who is not a lawyer, did not have much to
say at the hearing before me. Obviously she supports the decision of the
Commission to refer the matter to the Tribunal. She had some difficulty
focusing on the events on November 18, 2005, clearly resents highway 138 and
the border station running through the Akwesasne Reserve and considers that the
event may have been a pretext in the CBSA officers’ campaign to be permitted to
carry weapons. She referred to the closing of the bridge this past summer after
the CBSA closed the border crossing on Cornwall Island until
it set up a border station on the mainland in Cornwall. When
returning from New York she must now pass through Cornwall Island on to Cornwall on the
mainland to report, and then return. Otherwise she would be severely fined.
THE COMMISSION’S
POSITION
[48]
The
Commission sought leave to intervene to explain its process as Ms. Davis is
self-represented. Prothonotary Aronovitch granted that motion. The CBSA moved
to have certain paragraphs of the Commission’s subsequent memorandum of fact
and law struck from the record on the grounds that they did not explain the
process, but rather were intended to justify its decision by referring the
Court to various portions of the record. Whether or not there is any merit in
the CBSA’s position, its motion is pointless as I am expected, in any event, to
consider the record as a whole. The motion is dismissed on the grounds of
mootness.
THE LAW
[49]
I
begin with Mr. Justice LeDain’s reasons on behalf of the Federal Court of
Appeal in Latif v. Canadian Human Rights Commission, [1980] 1 F.C.R. 687
where he said at page 697:
There can be little doubt
that the Canadian Human Rights Act creates new rights of a substantive and
procedural nature. In effect it creates the right to be dealt with free from
discrimination of certain kinds in respect of certain matters within federal
legislative jurisdiction, and it provides special machinery for obtaining
relief from discriminatory practices. A decision not to deal with a complaint
on a ground specified in section 33 is a decision which effectively denies the
possibility of obtaining such relief. It is in a real sense determinative of
rights.
[50]
In Syndicat
des employés de production du Québec et de l'Acadie v. Canada (Human Rights
Commission), [1989] 2 S.C.R. 879, the Supreme Court plumbed Parliament’s
intention in the event there be insufficient evidence to warrant the referral
of the complaint by the Commission to the Tribunal. Mr. Justice Sopinka said at
page 899: “It is not intended that this be a determination where the evidence
is weighed as in a judicial proceeding but rather the Commission must determine
whether there is a reasonable basis in the evidence for proceeding to the next
stage.” He adopted the following statement of Lord Denning in Selvarajan v.
Race Relations Board, [1976] 1 All E.R. 12 (C.A.) where he said at page 19:
In recent years we have had to consider the
procedure of many bodies who are required to make an investigation and form an
opinion .... In all these cases it has been held that the investigating body is
under a duty to act fairly; but that which fairness requires depends on the
nature of the investigation and the consequences which it may have on persons
affected by it. The fundamental rule is that, if a person may be subjected to
pains or penalties, or be exposed to prosecution or proceedings, or deprived of
remedies or redress, or in some such way adversely affected by the
investigation and report, then he should be told the case made against him and
be afforded a fair opportunity of answering it. The investigating body is,
however, the master of its own procedure. It need not hold a hearing. It can do
everything in writing. It need not allow lawyers. It need not put every detail
of the case against a man. Suffice it if the broad grounds are given. It need
not name its informants. It can give the substance only. Moreover it need not
do everything itself. It can employ secretaries and assistants to do all the
preliminary work and leave much to them. But, in the end, the investigating
body itself must come to its own decision and make its own report.
[51]
This
quotation puts to rest the complaint that the Commission’s investigator did not
identify witnesses.
[52]
It
is well-established in the case law that when the Commission simply adopts its
investigator’s report, that report becomes its reasons: Sketchley v. Canada
(A.G.), 2005 FCA 404, [2006] 3 F.C.R. 392 at para. 37. It is also
well-established that the investigator is part of the Commission, not a person
independent from it (Selvarajan, above). There is nothing untoward about
other Commission members reviewing the draft and making comments. These
comments may have led to the interview of the female CBSA officer which caused
the officer to see the evidence in a different light.
[53]
As
noted by Mr. Justice La Forest in Bell v .Canada (Canadian
Human Rights Commission); Cooper v. Canada (Human Rights
Commission),
[1996] 3 S.C.R. 854 at para. 53:
The Commission is not an adjudicative body; that is the role of a
tribunal appointed under the Act. When deciding whether a complaint should
proceed to be inquired into by a tribunal, the Commission fulfills a screening
analysis somewhat analogous to that of a judge at a preliminary inquiry. It is
not the job of the Commission to determine if the complaint is made out. Rather
its duty is to decide if, under the provisions of the Act, an inquiry is
warranted having regard to all the facts. The central component of the
Commission's role, then, is that of assessing the sufficiency of the evidence
before it. Justice Sopinka emphasized this point in Syndicat des employés
de production du Québec et de L'Acadie v. Canada (Canadian Human Rights
Commission), [1989]
2 S.C.R. 879, at p. 899:
The other
course of action is to dismiss the complaint. In my opinion, it is the
intention of s. 36(3)(b) that this occur where there is insufficient evidence
to warrant appointment of a tribunal under s. 39. It is not intended that this
be a determination where the evidence is weighed as in a judicial proceeding
but rather the Commission must determine whether there is a reasonable basis in
the evidence for proceeding to the next stage.
[54]
The
vetting duty of a judge at a preliminary inquiry in criminal law was summarized
by the Supreme Court in R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54
at paras. 21-23. The question to be asked there is whether or not is any
evidence upon which a reasonable jury properly instructed could return a
verdict of guilty. The judge must commit the accused to trial if there is
admissible evidence which could, if it were believed, result in a
conviction. Then there is the question of whether the evidence is direct or
circumstantial; if the evidence is circumstantial, then some limited weighing
is permitted. Applying these principles to this case, there is direct evidence
from Ms. Davis which could, if believed, lead the Tribunal to a finding of
discrimination on the part of CBSA.
[55]
The
CBSA accepted that it falls upon the Commission to refer either all of the
complaint to the Tribunal, or none of it. Had the complaint been limited to
gender and age, given the investigator’s report, it is not likely that the
matter would have been referred to the Tribunal. In like manner, even if it
could be said that there is no evidence to support the proposition that the
CBSA targeted the Akwesasne Residents’ Lane, it does not follow that the
Commission’s decision is therefore unreasonable. The crucial issue is what was
said or not said by the CBSA officers to Ms. Davis during the secondary
inspection. I hasten to add that if the information the CBSA had was that
contraband was coming onto Cornwall Island in vehicles belonging
to Akwesasne residents, it would have been perfectly natural to focus scanning
on vehicles using the Residents’ Lane. Otherwise, the officers would be
shirking the responsibilities conferred upon them by the Parliament of Canada.
[56]
As
to the submission by the Attorney General on behalf of the CBSA that procedural
fairness demanded a response by the Commission to its detailed commentary, that
situation is more likely to occur in cases in which the investigator has
recommended that the complaint be dismissed (Herbert v. Canada (Attorney
General), 2008 FC 969, and Sanderson v. Canada (Attorney General)
2006 FC 447). This is because a dismissal brings an end to the matter. A
referral to the Tribunal is in no way determinative of the truth of the
allegation of discrimination. Procedural fairness is contextual (Baker v.
Canada (M.C.I.), [1999] 2 S.C.R. 817). In any event, most of the commentary
was argumentative and urged the investigator to prefer one body of evidence
over the other. It is not the function of the investigator, or the Commission,
to make credibility determinations, but rather only to determine whether or not
there is evidence which, if believed, would justify the complaint. In speaking
of the Refugee Board in Miranda v. Canada (M.E.I.) (1993), 63 F.T.R. 81,
Mr. Justice Joyal said:
[4] […] Although one
may isolate one comment from the Board's decision and find some error therein,
the error must nevertheless be material to the decision reached. And this is
where I fail to find any kind of error.
[5] It is true that
artful pleaders can find any number of errors when dealing with decisions of
administrative tribunals. Yet we must always remind ourselves of what the
Supreme Court of Canada said on a criminal appeal where the grounds for appeal
were some 12 errors in the judge's charge to the jury. In rendering judgment,
the Court stated that it had found 18 errors in the judge's charge, but that in
the absence of any miscarriage of justice, the appeal could not succeed.
[57]
The
Attorney General urges me to isolate various aspects of the Commission’s
decision wherein his “artful pleader” sees errors. Yet as Mr. Justice Joyal
emphasized, one must not lose track of the Commission’s mandate.
[58]
I
have come to the conclusion that the Attorney General has not made a case on
the balance of probabilities that the Commission’s decision to refer the complaint
to the Tribunal was tainted with bias, a lack of procedural fairness, based on
an inadequate investigation, or was unreasonable.
[59]
I
hasten to point out that what is at issue are the events of November 18, 2005
at the border crossing on Cornwall Island, not the history of European
settlement in North America.
[60]
Ms.
Davis did not seek costs, and none shall be awarded. The terms of reference of
the Commission’s intervention precludes it from seeking costs.
ORDER
FOR
REASONS GIVEN;
THIS COURT
ORDERS that:
- The application for
judicial review of the decision of the Canadian Human Rights Commission to
refer the complaint of Fallan Davis to the Canadian Human Rights Tribunal
is dismissed.
- The motion by the
Attorney General to strike portions of the memorandum of argument of the
intervener, Canadian Human Rights Commission, is dismissed on the ground
of mootness.
- There shall be no
order as to costs.
“Sean Harrington”
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