Date: 20090930
Docket: DES-7-08
Citation: 2009 FC 988
Ottawa, Ontario,
September 30, 2009
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IN
THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration
and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the
referral of a certificate to the Federal Court pursuant to section 77(1) of the
IRPA;
AND IN THE MATTER OF Mohamed
Zeki Mahjoub.
REASONS FOR ORDER
[1] Mohamed Zeki Mahjoub is
subject to a security certificate and is currently being detained at the
Kingston Immigration Holding Centre (the KIHC) pursuant to section 81 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). He is presently
the only person detained at KIHC.
[2] The
factual circumstances of the various security certificate proceedings in
respect of Mr. Mahjoub have been thoroughly canvassed elsewhere (see e.g. Canada
(Minister of Citizenship and Immigration and Minister of Public Safety) v.
Mahjoub, 2009 FC 34; Canada (Minister of Citizenship and Immigration and
Minister of Public Safety) v. Mahjoub, 2009 FC 248).
[3] The
present motion concerns Mr. Mahjoub’s conditions of detention and the
mechanisms put in place by which he can make complaints relating to those
conditions. Mr. Mahjoub argues that the conditions of his detention violate
sections 7 and 15 of the Charter of Rights and Freedoms, Part 1 of
the Constitution Act, 1982, being Schedule B to the Canada Act 1982,
c.11 (the Charter). Specifically, he argues that the conditions of his
detention are discriminatory vis-à-vis persons detained pursuant to the Corrections
and Conditional Release Act, 1992, c. 20 (the CCRA), because unlike persons
detained under the CCRA, he is not able to initiate complaints about the
conditions of his detention with the Office of the Correctional Investigator
(OCI), an ombudsman who provides independent investigation into inmates’
complaints. In relation to section 7, Mr. Mahjoub argues that the absence of an
independent grievance process for persons detained under security certificates pursuant
to the IPRA offends section 7 of the Charter.
[4] In
advancing both claims, Mr. Mahjoub compares his situation to that of inmates
detained in federal penitentiaries. Therefore, before addressing the merits of
his constitutional challenge, it is useful to understand the detention scheme
under the IPRA, under which Mr. Mahjoub is detained, and the detention scheme
under the CCRA, which governs federal inmates. To that end, I provide the
following background information.
Background on the IPRA and CCRA Detention Regimes
[5] The KIHC
is a federal detention facility exclusively used for persons named in security
certificates who are detained pursuant to section 81 of the IRPA. The Canada
Border Service Agency (the CBSA), responsible for persons detained pursuant to
the IRPA, is the authority charged with operating the KIHC. The KIHC is located
on the premises of the Millhaven Institution, a federal penitentiary in Bath, Ontario. The Correctional Service of
Canada (the CSC), responsible for the operation of the Millhaven Institution,
provides the services and employees to operate the KIHC under a Memorandum of
Understanding with CBSA.
[6] The
complaint and grievance procedure put in place for persons detained at the KIHC
is found in the President’s Directive 081: Redress Process, CBSA 2006 (the Directive). Detainees are entitled to submit formal written complaints
and grievances about their conditions of detention. The redress process begins at the lowest
levels of the CBSA or the CSC management, and escalates to increasingly higher
levels. The first formal
level is a complaint process, which is dealt with at the local level. It is
followed by a three-level grievance process, the first two levels being dealt
with at the regional level and the final grievance being dealt with at the
national level. Depending on the nature of the complaint, the CSC or the CBSA
will be charged with responding to the complaint. These are the sole agencies
involved in the complaint and grievance procedure. At each level of the complaint and
grievance procedure, the detainee is to be provided with complete and written
responses to the issues raised.
[7] Mr. Mahjoub contrasts the grievance
procedure for persons detained under security certificates, to the grievance
procedure made available to inmates in federal penitentiaries. Persons convicted of criminal
offences and detained in federal penitentiaries, such as Millhaven, are under
the authority of the CSC, and the manner in which their sentences are served is
governed by the CCRA. These inmates have access to a complaint and grievance
procedure under the CCRA, which is similar to the one made available to persons
detained under security certificates, described above. Inmates also have access to the complaint mechanism of
the OCI, as set out in the Part III of the CCRA. The
OCI acts as an independent ombudsman and its primary function is to investigate
and bring resolution to individual offender complaints (see the CCRA, s. 167). Where the OCI determines that
a problem exists and that a complaint is well-founded, it informs and makes
non-binding recommendations to the Correctional Commissioner or the National
Parole Board (see the CCRA, ss. 177-179).
[8] The OCI
has jurisdiction over “offenders’” complaints, under section 167 of the CCRA:
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167. (1) It is
the function of the Correctional Investigator to conduct investigations into
the problems of offenders related to decisions, recommendations, acts or
omissions of the Commissioner or any person under the control and management
of, or performing services for or on behalf of, the Commissioner that affect
offenders either individually or as a group.
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167.
(1) L’enquêteur correctionnel mène des enquêtes sur les problèmes des
délinquants liés aux décisions, recommandations, actes ou omissions qui
proviennent du commissaire ou d’une personne sous son autorité ou exerçant
des fonctions en son nom qui affectent les délinquants individuellement ou en
groupe.
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[9] Offender
is defined at section 99 of the CCRA, and does not include persons detained
under security certificates pursuant to IRPA:
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"offender"
means
(a) a person,
other than a young person within the meaning of the Youth Criminal Justice
Act, who is under a sentence imposed before or after the coming into force of
this section
(i) pursuant
to an Act of Parliament or, to the extent that this Part applies, pursuant to
a provincial Act, or
(ii) on
conviction for criminal or civil contempt of court if the sentence does not
include a requirement that the offender return to that court, or
(b) a young
person within the meaning of the Youth Criminal Justice Act with respect to
whom an order, committal or direction under section 76, 89, 92 or 93 of that
Act has been made,
but does not
include a person whose only sentence is a sentence being served
intermittently pursuant to section 732 of the Criminal Code;
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«
délinquant »
a)
Individu condamné — autre qu’un adolescent au sens de la Loi sur le système
de justice pénale pour les adolescents —, avant ou après l’entrée en vigueur
du présent article, à une peine d’emprisonnement :
(i)
soit en application d’une loi fédérale ou d’une loi provinciale dans la
mesure applicable aux termes de la présente partie,
(ii)
soit à titre de sanction d’un outrage au tribunal en matière civile ou pénale
lorsque le délinquant n’est pas requis par une condition de sa sentence de
retourner devant ce tribunal;
b)
adolescent, au sens de la Loi sur le système de justice pénale pour les
adolescents , qui a fait l’objet d’une ordonnance, d’une détention ou d’un
ordre visés aux articles 76, 89, 92 ou 93 de cette loi.
La
présente définition ne vise toutefois pas la personne qui, en application de
l’article 732 du Code criminel, purge une peine de façon discontinue.
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[10] Mr. Mahjoub argues that the definition of
“offender” contained in section 99 of the CCRA is under-inclusive, such
that persons being detained in a federal facility pursuant to a security
certificate do not come within the meaning of “offender” and as a result are
not able to initiate a complaint with the OCI which would trigger the powers
and duties set out in the CCRA.
According to Mr. Mahjoub, the exclusion of security certificate detainees from
the definition of “offender” and from access to the OCI is contrary to sections
7 and 15 of the Charter.
Issues Raised By Mr. Mahjoub
[11] Two
constitutional issues are raised in this motion:
(1) Does
the definition of “offender” set out in the CCRA contravene subsection 15(1) of
the Charter?
(2) Does
the definition of “offender” set out in the CCRA contravene section 7 of the Charter?
[12] The
parties agreed that the motion be adjudicated on the following agreed statement
of facts:
Both parties agree that there are live
issues between Mr. Mahjoub and the staff of the KIHC;
Those live issues are not sought to be
adjudicated on this motion;
Both parties agree that if Mr. Mahjoub
was an “offender” or “inmate” as defined under the CCRA, he could initiate a
complaint with the OCI which would trigger the powers and duties set out in the
Act.
[13] No
further evidence was adduced.
Analysis
Mr. Mahjoub’s Section 15 Claim
[14] Section
15 of the Charter states:
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Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
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La
loi ne fait acception de personne et s'applique également à tous, et tous ont
droit à la même protection et au même bénéfice de la loi, indépendamment de
toute discrimination, notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou
les déficiences mentales ou physiques.
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[15] Persons
detained under security certificates pursuant to the IRPA do not have access to
the OCI as they are not included in the definition of offender of the CCRA,
while persons detained in federal facilities pursuant to criminal law do have
access to the OCI. Mr. Mahjoub alleges that the basis for this differential
treatment is citizenship. He argues that the CCRA is discriminatory in its
effect because all security certificate detainees are non-citizens.
[16] In R.
v. Kapp, 2008 SCC 41 at para. 17, the Supreme Court affirmed Andrews v.
Law Society of British Columbia, [1989] 1 S.C.R. 143, and identified a two-step
analysis in assessing a claim of discrimination:
(1) Does
the law create a distinction based on an enumerated or analogous ground?
(2) Does the
distinction create a disadvantage by perpetuating prejudice or stereotyping?
The Appropriate Comparator Group
[17] A
section 15(1) analysis requires that I begin by identifying the appropriate
comparator group, and then in accordance with the first step of the Kapp test,
ask whether, as compared with people in that group, the claimant has been
denied a benefit on the basis of an enumerated or analogous ground.
[18] In Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at
paras. 51 to 53, the Supreme Court summarized the law pertaining to the
choice of comparators. The Court reiterated the position it had adopted in Hodge v. Canada (Minister of Human Resources
Development),
2004 SCC 65, [2004] 3 S.C.R. 357:
First,
the choice of the correct comparator is crucial, since the comparison between
the claimants and this group permeates every stage of the analysis.
“[M]isidentification of the proper comparator group at the outset can doom the
outcome of the whole s. 15(1) analysis”: Hodge, supra, at para. 18.
Second,
while the starting point is the comparator chosen by the claimants, the Court
must ensure that the comparator is appropriate and should substitute an
appropriate comparator if the one chosen by the claimants is not appropriate:
Hodge, supra, at para. 20.
Third,
the comparator group should mirror the characteristics of the claimant or
claimant group relevant to the benefit or advantage sought, except for the
personal characteristic related to the enumerated or analogous ground raised as
the basis for the discrimination: Hodge, supra, at para. 23. The comparator
must align with both the benefit and the “universe of people potentially
entitled” to it and the alleged ground of discrimination: Hodge, at paras. 25
and 31.
[19] In this case, Mr. Mahjoub has selected
as the comparator group “persons detained in federal facilities pursuant to
criminal law.” During oral argument, counsel for Mr. Mahjoub also described the
comparator group as “federal detainees in a maximum security prison” and as “persons
detained in a federal facility on a long term basis.” In this regard, counsel
stated:
In terms of Mr. Mahjoub's position, he
comes to the Court and says, "I am not a citizen of Canada, but I am entitled to the
same concern, respect and consideration that every other federal detainee
has who is in a maximum security prison."
[…]
The problem is that you have a non-citizen who is detained on a long-term
basis. The reality in these cases is that they are long term detainees.
They have the same prison guards in the same penitentiary as an inmate. In that
sense, in actual terms, there is no difference between Mr. Mahjoub and an
inmate who is down the hall from the Administration building in his detention
centre where he is being detained. [My emphasis.]
[20] The
Ministers did not propose an alternative comparator group.
[21] I
accept as proper the initial
comparator group proposed by Mr. Mahjoub, namely “persons detained in federal
facilities pursuant to criminal law.” In my view, this the most appropriate
comparator group in Mr. Mahjoub’s circumstance. It mirrors the characteristics
of the claimant, Mr. Mahjoub, in terms of detention in a federal facility
and bears an appropriate relationship to the benefit that constitutes the
subject matter of the complaint: access to the OCI.
[22] The
further articulation of the comparator group by counsel for Mr. Mahjoub during
oral argument, i.e.: “federal detainees in maximum security prisons” and
“long-term detainees in federal facilities,” are not, in my view, appropriate
because they are under-inclusive. Access to the OCI is not limited to offenders
held in maximum security prisons, and therefore “federal detainees in maximum
security prisons” is not an appropriate comparator group. Further, offenders
detained in federal penitentiaries have access to the OCI irrespective of the
length of their detention and therefore “long-term detainees in federal
facilities” is also under inclusive.
Does the law create a
distinction based on an enumerated or analogous ground?
[23] The first
step of the Kapp test involves an inquiry into whether there is a differential
treatment between Mr. Mahjoub and the comparator group on the basis of an
enumerated or analogous ground.
[24] The differential treatment alleged by Mr.
Mahjoub is that persons, in his circumstances, detained in federal facilities
under security certificates pursuant to the IRPA do not have access to the OCI,
while persons who are part of the comparator group, that is to say persons
detained in federal facilities pursuant to criminal law, do have access to the
OCI.
[25] Mr.
Mahjoub argues that his citizenship is the enumerated or analogous ground which
is the basis for his differential treatment. The Supreme Court has on two occasions
confirmed that citizenship is an analogous ground protected under section 15 of
the Charter (Andrew, supra; Lavoie v. Canada, [2002] 1
S.C.R. 769, 2002 SCC 23). Once a ground has been found to be analogous, it
serves as a permanent marker of potential discrimination and need not be
revisited (Corbiere v. Canada (Minister of Indian and Northern Affairs),
[1999] 2 S.C.R. 203, at para. 8). Thus, there can be little doubt that if the
impugned legislation differentiates on the basis of citizenship, the first step
in Kapp will be satisfied.
[26] The question is,
therefore, whether the lack of access to the OCI (differential treatment), for
persons detained under security certificates pursuant to the IRPA, is based on
citizenship (analogous ground)? The main issue in Mr. Mahjoub’s section 15(1)
challenge is whether there is a proper causal link between the benefit sought,
access to the OCI, and the ground of discrimination alleged, which is
citizenship.
[27] On its face, the CCRA does not create a
distinction between citizens and non-citizens. A non-citizen, convicted of a
criminal offence and detained in a federal penitentiary, has access to the OCI.
The Ministers argue that the analogous ground of citizenship is not the reason
for the differential treatment, rather it is the legal basis for detention
which is the reason for the differential treatment. As stated by counsel for
the Ministers:
But
the deprivation is not because of citizenship. The deprivation is because of
the reason for the detention, because of the purpose that detention is to
serve.[…] It is for all of those reasons that they are not inmates in
penitentiaries.
[28] Mr. Mahjoub submits that it is the effect
of the CCRA which is problematic, because all security certificate detainees are
non-citizens, by definition only non-citizens are deprived of access to the OCI.
Mr. Mahjoub alleges that the legal basis for detention – in this case detention
under security certificates pursuant to the IRPA – is used as proxy to
discriminate on the basis of citizenship. Mr. Mahjoub therefore makes a claim
of indirect discrimination.
[29] The context of
the CCRA legislative scheme and its purpose raise doubts about whether citizenship
can be a basis for the differential treatment of security certificate detainees
in relation to access to the OCI. In Auton, at para. 42, the Supreme
Court of Canada stated that the appropriate approach for evaluating a claim of
indirect discrimination includes an examination of the overall purpose of the
legislative scheme:
A statutory scheme may discriminate either
directly, by adopting a discriminatory policy or purpose, or indirectly, by
effect. Direct discrimination on the face of a statute or in its policy is
readily identifiable and poses little difficulty. Discrimination by effect is more
difficult to identify. Where stereotyping of persons belonging to a group is at
issue, assessing whether a statutory definition that excludes a group is
discriminatory, as opposed to being the legitimate exercise of legislative
power in defining a benefit, involves consideration of the purpose of the
legislative scheme which confers the benefit and the overall needs it seeks to
meet. If a benefit program excludes a particular group in a way that undercuts
the overall purpose of the program, then it is likely to be discriminatory: it
amounts to an arbitrary exclusion of a particular group. If, on the other hand,
the exclusion is consistent with the overarching purpose and scheme of the
legislation, it is unlikely to be discriminatory. Thus, the question is whether
the excluded benefit is one that falls within the general scheme of benefits
and needs which the legislative scheme is intended to address.
[30] Section 3 of the CCRA sets out the purpose of the federal
correctional system. The section provides as follows:
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3.
The purpose of the federal correctional system is to contribute to the
maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by
courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of
offenders and their reintegration into the community as law-abiding citizens
through the provision of programs in penitentiaries and in the community.
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3. Le système correctionnel vise à contribuer au maintien
d’une société juste, vivant en paix et en sécurité, d’une part, en assurant
l’exécution des peines par des mesures de garde et de surveillance
sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes
appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation
des délinquants et à leur réinsertion sociale à titre de citoyens respectueux
des lois.
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[31] The
overarching purpose of the legislative scheme at issue is to provide, in the
interest of maintaining a just, peaceful and safe society, for the safe and
humane custody of offenders serving sentences while assisting with their
rehabilitation with the view of eventual reintegration in society The OCI is an
integral part of the federal correctional system and is set up as an independent
body to address the complaints of those persons
convicted of criminal offences and detained in federal penitentiaries. The
exclusion from access to the OCI of persons detained under security
certificates pursuant to the IRPA is not inconsistent with the overarching
purpose of the correctional system and the legislative scheme of the CCRA. The
latter focuses on sentences imposed by criminal courts and rehabilitation of
convict which may lead to their reintegration in society. Individuals detained
under the IRPA are held pending their eventual removal from Canada. They are not serving a criminal sentence. Nor does the IRPA
contemplate their rehabilitation.
[32] Further,
persons detained under security certificates are not the only group of federal
detainees without access to the OCI. The
CCRA does not purport to be a comprehensive scheme for all persons detained in
federal facilities. For example, it does not cover persons held in RCMP holding
centers, National Defence detention facilities, Aboriginal Police holding
facilities and immigration holding centers. The persons detained in such
centers do not have access to the OCI. As Peter Hogg, Constitutional Law (Scarborough,
Ont.: Thomson Carswell, 2007, 5th ed. Vol. 2) explains at page 55-34:
In
a scheme that is supposed to be comprehensive, it is natural to make the
comparison between those who are denied benefits and those who are granted
benefits. The comparison is less persuasive (and the consequences more costly)
where the scheme is not comprehensive and the claimant group is only one of a
number of groups from whom the benefits is withheld.
If all persons detained in
federal facilities were able to access the OCI except for persons detained
under security certificates pursuant to the IRPA, Mr. Mahjoub’s claim under subsection
15(1) of the Charter would be more compelling. However, in the present
case, Mr. Mahjoub seeks to access the OCI program made available to persons
convicted of criminal offences who are serving sentences in federal
penitentiaries under a legislative scheme which addresses correctional matters
and sentencing with a focus on rehabilitation.
[33] Counsel for Mr. Mahjoub emphasized the
similarities in terms of the conditions of detention of Mr. Mahjoub and persons
detained in federal facilities pursuant to criminal law, particularly those at
Millhaven. This
was done in an effort to convince the Court that in all respects except for
citizenship, Mr. Mahjoub is similarly situated to the other detainees and that
it is Mr. Mahjoub’s lack of citizenship
that is the basis for his being barred from accessing the OCI. With due respect, I disagree. In a
successful subsection 15(1) Charter challenge, an immutable personal
characteristic such as citizenship must form the basis of the exclusion of the
legal benefit. Although only non-citizens are security certificate detainees,
it is not the lack of citizenship, per se, which bars them from access
to the OCI but rather the fact that they are not persons convicted of criminal
offence under Canada’s Correctional Services Regime.
[34] In their written submissions, counsel stated
that it was the combination of namely citizenship and the legal basis for
detention which was underlying the differential treatment. During oral
argument, counsel could not isolate citizenship as the only factor on which the
differential treatment was based:
They
put him [Mr. Mahjoub] in a maximum security penitentiary and they never really
considered the question of whether he should have a fair chance at having his
complaints about his conditions dealt with. They have already dealt with it for
everybody else, citizens and non-citizens, but not him. Why? I would say the root
of it is that he is being held under immigration legislation.
In
Mr. Mahjoub’s case his access to the advantage of the Correctional
Investigator has been limited because he is not an offender. He hasn’t
committed a crime. He is just a non-citizen detained on a security
certificate, but in the same facilities, on the same premises, guarded by the
same people.” [My emphasis]
[35] In the circumstances, the
impugned provision of the CCRA simply does not contemplate a differential
treatment based on citizenship. I conclude that the differential treatment between person
detained in federal facilities pursuant to criminal law and those detained
under security certificates pursuant to IRPA is not based on citizenship. Mr. Mahjoub
has not met the first part of the Kapp test. As the section 15
jurisprudence teaches, not all differences in treatment amount to discrimination
under the Charter. There may well be strong policy reasons to consider
an independent investigative regime for the IPRA detainees housed on the
grounds of federal penitentiaries. Such an investigational regime need not be
the same as the OCI. It follows, therefore, that the lack of access to the OCI
for security certificate detainees under the IRPA does not constitute
discrimination under section 15 of the Charter vis-à-vis CCRA detainees.
Mr. Mahjoub’s
Section 7 Claim
[36] Section 7 of
the Charter provides:
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Everyone has
the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.
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Chacun a droit à la vie, à la liberté
et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit
qu'en conformité avec les principes de justice fondamentale.
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[37] A section 7 challenge involves a two stage inquiry. First, a claimant must
establish deprivation one of the protected interests; life, liberty or security
of the person. Second, if the claimant meets the burden of establishing the
deprivation, then the claimant must establish that the deprivation was not in
accord with the principles of fundamental justice. See: Canadian foundation
for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, at para. 3.
[38] The legality of Mr.
Mahjoub’s detention under section 81 of the IRPA is not in dispute. The motion
is not about the deprivation of Mr. Mahjoub’s liberty interest that resulted
from his initial detention, but rather about his residual liberty interest as a
detainee under the IRPA. It is well established that inmates remain vested with
residual rights regarding the nature and conduct of their detention
notwithstanding their general deprivation of liberty. See: Dumas v. Leclerc
Institute, [1986]
2 S.C.R. 459; Martineau
v. Matsqui Disciplinary Bd., [1980] 1 S.C.R. 602; Cunningham v. Canada, [1993] 2
S.C.R. 143.
[39] Mr. Mahjoub maintains that the
grievance procedure in place for persons detained under security certificates
pursuant to the IRPA fails to provide an independent mechanism for review of
complaints of detainees, available essentially to all other federal inmates. As
a detainee under the IRPA, Mr. Mahjoub argues that the conditions of his
detention do not, consequently, meet the requirements of fundamental justice
and as a consequence violates his section 7 of the Charter.
[40] As
stated above, the parties agree that there are live issues between Mr. Mahjoub
and the staff of the KIHC that relate to the conditions of Mr. Mahjoub’s
detention but do not seek adjudication of these issues in the present motion. Nevertheless, counsel for
Mr. Mahjoub relies on the complaints made by Mr. Mahjoub, in relation to the
conditions of his detention, to demonstrate that there have been deprivations
of Mr. Mahjoub’s residual liberty interests and, as a consequence, the
conditions of his detention have infringed his fundamental rights.
[41] The
Ministers agree that Mr. Mahjoub’s section 7 rights are engaged in the
circumstances. At the hearing, in oral argument, counsel expanded on the
Ministers’ position in the following terms:
I had not taken it to mean that we were
suggesting that there is any validity to these complaints that were being made
[by Mr. Mahjoub]. If that is your understanding, then we would not accept that
section 7 is engaged. We were looking at it more broadly.
As my friend [counsel for Mr. Mahjoub] is
saying, if at the end of the day the complaints were found to be well-founded,
then that would engage a liberty interest.
[…] I think what we have done within the
written materials [Ministers’ submissions] is that we have broken that down
under the different steps in section 7. While we agree that section 7 is
engaged, we don’t agree that there is a principle of fundamental justice at
play here or that it has been infringed.
[…] I think both parties saw the interest
in getting this matter to the Court under the circumstances. I understand that
having more evidence would have been more helpful to you, but in the
circumstances in which we find ourselves we have agreed to say it is engaged.
[42] The
position of the Ministers, as I understand it, is to agree
that Mr. Mahjoub’s section 7 rights are “engaged.” However, the Ministers do
not agree that the conditions of Mr. Mahjoub’s detention further deprive him of
his liberty or security interest, but simply that should his complaints be
accepted as well-founded, then his section 7 liberty interests “would be
engaged”. On this basis, they ask the Court to determine whether the grievance
procedure available to Mr. Mahjoub respects the principles of fundamental
justice.
[43] While I have little
difficulty accepting that Mr. Mahjoub’s section 7 interests are engaged in the circumstances,
this cannot, without a proper factual foundation, lead to a finding that his
rights have been infringed. Such a deprivation must be established before
moving to address the issue of whether Mr. Mahjoub’s rights were infringed in a
manner not in accordance with the principles of fundamental justice. The
jurisprudence of the Supreme Court teaches that to trigger the operation of
section 7, there must first be a finding of deprivation. In Blencoe v. British
Columbia
(Human Rights Commission), [2000] 2 S.C.R. 307, at para. 47, Justice
Bastarache stated:
Thus, before it is even possible to address the issue of
whether the respondent’s s. 7 rights were infringed in a manner not in
accordance with the principles of fundamental justice, one must first establish
that the interest in respect of which the respondent asserted his claim falls
within the ambit of s. 7. These two steps in the s. 7 analysis have been set
out by La Forest J. in R. v. Beare, 1988 CanLII 126 (S.C.C.), [1988] 2
S.C.R. 387, at p. 401, as follows:
To trigger its operation there
must first be a finding that there has been a deprivation of the right to
“life, liberty and security of the person” and, secondly, that the deprivation
is contrary to the principles of fundamental justice.
Thus, if no interest in the respondent’s
life, liberty or security of the person is implicated, the s. 7 analysis stops
there. [My
emphasis]
[44] Here, there
is insufficient factual basis upon which I can determine that there has been a
deprivation of the right to “life, liberty and security of the person” in the
circumstances. The only facts before me, which were agreed to, are that if Mr.
Mahjoub was an “offender” or “inmate” as defined in the CCRA, he could initiate
a complaint with the OCI which would engage the powers and duties set out in
the Act. Simply being deprived of a particular grievance process is, in itself,
not sufficient to establish a deprivation of a section 7 right. Not every
deprivation will necessarily lead to a section 7 right being infringed. The
circumstances surrounding the deprivation are important, such as: the context
in which the deprivation arises, the seriousness of the offending activity of
activities that give rise to the rights violation. Such information is required
in order to evaluate whether fundamental justice has been respected in the
circumstances.
[45] The level of procedural
safeguards required to respect the principles of fundamental justice will vary
with the circumstances. Where a more serious rights violations is at issue,
more stringent procedural safeguards will be warranted. The Supreme Court made
clear that the application of the principles of fundamental justice, which
include a guarantee of procedural fairness, be applied with regard to the
circumstances and consequences of the deprivation. In Charkaoui v. Canada (Citizenship and
Immigration) (Charkaoui 1) at paras. 19 to 20, Chief Justice McLachlin
stated in this regard:
Section 7 of the Charter requires
that laws that interfere with life, liberty and security of the person conform
to the principles of fundamental justice — the basic principles that underlie
our notions of justice and fair process. These principles include a guarantee
of procedural fairness, having regard to the circumstances and consequences
of the intrusion on life, liberty or security: Suresh, at para. 113
[Suresh v. Canada (Minister of Citizenship and
Immigration) 2002
SCC 1].
Section 7 of the Charter requires not a
particular type of process, but a fair process having regard to the nature
of the proceedings and the interests at stake: United States of America
v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 14; R. v. Rodgers,
2006 SCC 15, [2006] 1 S.C.R. 554, at para. 47; Idziak v. Canada (Minister of
Justice), [1992] 3 S.C.R. 631, at pp. 656-57.[…] [My
emphasis]
She also added at
para. 22:
The question at the s. 7 stage is whether
the principles of fundamental justice relevant to the case have been observed
in substance, having regard to the context and the seriousness of the
violation. […] [My emphasis]
[46] Further,
it is
well-established that an evidentiary basis is required for the Court to
entertain the section 7 Charter claim. In MacKay v. Manitoba,
[1989] 2 S.C.R. 357, at 361, Justice Cory for the majority stated that:
Charter decisions should not
and must not be made in a factual vacuum. To attempt to do so would trivialize
the Charter and inevitably result in ill‑considered
opinions. The presentation of facts is not, as stated by the respondent,
a mere technicality; rather, it is essential to a proper consideration of Charter
issues.
[47] Adjudicative
facts, facts which are specific, and must be proved by admissible evidence, are
especially important in the context of section 7. As Chief Justice Lutfy stated
in Almrei (Re), 2008 FC 1216 at para. 34:
The level of adjudicative facts necessary
to evaluate constitutional claims will vary. I expect that assessing s. 7
Charter claims will necessitate a greater degree of adjudicative facts,
particularly when the alleged infringement concerns the effects on procedural
rights protected by the principles of fundamental justice. Here, the affidavit
evidence is of limited assistance.
[48] Mr.
Mahjoub’s section 7 claim lacks any adjudicative facts in respect of the
limitation on or infringement of his section 7 rights. Mr. Mahjoub has failed
to adduce sufficient evidence to establish a deprivation of his section 7
liberty or security interests.
[49] My
above finding is determinative of Mr. Mahjoub’s section 7 Charter challenge.
In accord with the above cited jurisprudence of the Supreme Court, without a
finding that Mr. Mahjoub’s life, liberty or security of the person is
implicated, the section 7 analysis should end. Without a proper factual
foundation, a proper analysis of whether any deprivation that could arise in
the circumstances was not in accord with the principles of fundamental justice
is not possible. I will therefore not conduct a comprehensive analysis of the
second step of the section 7 inquiry, as requested by the parties. I am
prepared, nevertheless, to offer the following observations in the hope that
they may be useful to the parties.
[50] Claimants
whose life, liberty or security of the person is put at risk are entitled to
relief only to the extent that their complaints arise from a breach of an
identifiable principle of fundamental justice. See: Chaoulli v. Quebec (A.G.), 2005 SCC 35, at
para. 199.
[51] The
main argument advanced by Mr. Mahjoub, in regards to fundamental justice, is
that not having access to an independent and impartial oversight mechanism for
his complaints relating to his conditions of detention and treatment infringe
his liberty and security interests in a way that breach the principles of
fundamental justice. Mr. Mahjoub argues that the grievance procedure for
security certificate detainees does not provide a sufficiently independent and
impartial system for procedural fairness to be met.
[52] As stated above, the principles of fundamental justice include the
guarantee of procedural fairness, having regard to the circumstances and
consequences of the intrusion on life, liberty or security (Charkaoui 1, at
para. 19). In terms of procedural fairness, section 7 does not require a
particular type of process, but a fair process having regard to the nature of
the proceedings and the interests at stake (Charkaoui 1, at para. 20).
[53] While we are unable to assess the seriousness of the rights
violation at issue, by reason of the paucity of evidence, we are aware that the
grievance procedure set out in the Directive allows Mr. Mahjoub to pursue a complaint up
the successive administrative rungs of the CSC and the CBSA. The process
remains internal to the respective departments and therefore cannot be said to
be an independent review of Mr. Mahjoub’s complaints.
[54] However, security
certificate detainees have access to two other external review mechanisms:
judicial review of grievance decisions pursuant to section 18 of the Federal
Courts Act, R.S., 1985, c. F-7 (the Act), and application for a writ
of habeas corpus. A person detained under a security certificate
can, by virtue of sections 2 and 18 of the Act, seek judicial review of a
grievance decision taken at the final national level (third level grievance) on
grounds of fairness and compliance with the Charter. The Federal Court
has the jurisdiction to give prerogative, declaratory and injunctive relief
against a “federal board, commission or other tribunal” which includes public
officials exercising powers or jurisdiction under a federal statute. In the
correctional context, the jurisdiction of the Federal Court to review final
decisions relating to inmate grievances was recognized in May v. Ferndale
Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 (paras. 30-31 and 71).
Mr. Mahjoub could apply for a judicial review of a grievance decision after
having exhausted the grievance procedure. At this time, Mr. Mahjoub has not
exhausted the grievance process to which he has access.
[55] Security certificate
detainees also have access to a review of their conditions of detention by way
of habeas corpus. Mr. Almrei, detained under a security certificate,
used habeas corpus to challenge the conditions of his detention before
the Ontario Superior Court. In Almrei v. Canada (Attorney General), [2003] O.J. No. 5198
(QL), at para. 29, Mr. Justice Gans found that denying Almrei footwear
in his own cell was unlawful, he stated:
A
further restriction on liberty, beyond that of the normal prison experience,
can therefore be the target of a habeas corpus application.
[56] The Federal Court of
Appeal in Almrei v. Canada (Minister of Citizenship and Immigration),
2005 FCA 54, discussed this case and found that habeas corpus was
an appropriate remedy for security certificate detainees challenging the conditions
of their detention. The principle that habeas corpus can be used to
review the conditions imposed on detainees is derived from correctional law. As
noted in R v. Miller, [1985] 2 S.C.R. 613, at 642:
I
do not say that habeas corpus should lie to challenge any and all conditions of
confinement in a penitentiary or prison, including the loss of any privilege
enjoyed by the general inmate population. But it should lie in my opinion to
challenge the validity of a distinct form of confinement or detention in which
the actual physical constraint or deprivation of liberty, as distinct from the
mere loss of certain privileges, is more restrictive or severe than the normal
one in an institution.
[57] I accept the submission
made on behalf of Mr. Mahjoub that habeas corpus may not be the ideal
process or most practical or effective means to address day to day complaints
relating to the detention of security certificate detainees. It is nevertheless
an independent review process available to him. Judicial review and habeas
corpus are two independent external review mechanisms which allow security
certificate detainees to challenge the legality of their conditions of
detention. Therefore, it cannot be said that Mr. Mahjoub does not have access
to an independent and external review process for complaints he may have in
relation to the conditions of his detention.
Conclusion
[58] For the above reasons I conclude that the definition of offender as
set out in section 99 of the CCRA neither contravenes section 7 nor section
15(1) of the Charter. Accordingly, the motion will be dismissed.
Certified
Question
[59] At the conclusion of oral argument, I indicated that I would give
the parties an opportunity to be heard on the issue of certification. The
parties are directed to serve and file, within seven days of the date of these
reasons, written submissions on whether section 74(d) of IPRA, which
provides for the certification of a serious question of general importance on
appeal, is engaged in the context of the present motion.
[60] In the event section 74(d) of the IRPA is engaged, the parties are
directed to serve and file their respective proposed question(s) and
submission(s), if any, within seven (7) days of the date of these reasons. In
that event, the parties will be given an additional three days to file written
replies, if any.
[61] Following consideration
of the parties’ submissions, an order will issue dismissing the motion and
disposing of the issue of a serious question of general importance as
contemplated by section 74(d) of the IRPA.
“Edmond P.
Blanchard”
Ottawa, Ontario
September 30, 2009
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