Docket: T-401-14
Citation:
2015 FC 907
Toronto, Ontario, July 24, 2015
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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KIEN BENG TAN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Kien Beng Tan (the “Applicant”) seeks judicial
review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985
c. F-7 of a decision by the Canadian Human Rights Commission (the “Commission”)
refusing to deal with the Applicant’s complaint of religious discrimination
against Correctional Services Canada (“CSC”).
[2]
In its decision, dated August 21, 2013 the
Commission found that it did not have jurisdiction to hear the complaint
because the Applicant was not “lawfully present”
in Canada for the purposes of the Canadian Human Rights Act, R.S.C. 1985
c. H-6 (the “Act”).
[3]
Pursuant to Rule 303(2) of the Federal Courts
Rules, SOR/98-106, the Attorney General of Canada is the Respondent in this
Application for Judicial Review.
II.
BACKGROUND
[4]
The Applicant is a citizen of Malaysia. He is
currently serving a life sentence for second degree murder at the Kent
Institution, a federal prison in British Columbia.
[5]
The Applicant came to Canada on a temporary
visa. In 2004 he was involved in an incident that resulted in the death of another
individual. Following the incident, the Applicant fled Canada and was arrested
in Belgium in 2008. He was extradited to Canada from Belgium on March 28, 2008
to stand trial on criminal charges, pursuant to a bilateral extradition treaty.
[6]
On February 11, 2011, the Applicant was
convicted of second degree murder and sentenced to a life sentence with
eligibility to apply for parole after serving ten (10) years.
[7]
In consequence of his criminal conviction, an
Inadmissibility Report on the Applicant was prepared pursuant to subsection
44(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27
(the “IRPA”). A deportation order was issued but that order was stayed pursuant
to subsection 50(b) of the IRPA, until the Applicant had served his sentence.
[8]
The Applicant is Buddhist and continues to
practice his religion from prison. On December 12, 2012 he made a written
complaint to the Commission, alleging that CSC was discriminating against him
on the basis of religion by failing to renew contracts with chaplains
representing minority faiths, while continuing to retain Christian chaplains.
III.
DECISION UNDER REVIEW
[9]
The Commission issued its decision on December
27, 2013, refusing to deal with the Applicant’s complaint of discrimination on
the basis that it lacked jurisdiction because the Applicant was not “lawfully present” in Canada, for the purposes
of the Act.
[10]
Pursuant to subsection 40(6) of the Act, the
Commission referred the question of the Applicant’s legal status in Canada to
the Minister of Citizenship and Immigration. By letter dated August 1, 2013 the
Minister replied, expressing the opinion that the Applicant is not lawfully
present in Canada because he is not a citizen, visitor, permanent resident or
person in possession of a Minister’s permit pursuant to subsection 24(1) of the
IRPA.
[11]
The Commission also considered a section 40/41
Investigation Report (the “Report”) dated August 21, 2013, and adopted the
Report’s opinion that because the Applicant’s status was not resolved in his
favour, the Commission could not proceed with the complaint, pursuant to
subsection 40(6) of the Act. The Commission concluded that it did not have
jurisdiction, and did not deal with the complaint pursuant to paragraph
41(1)(c).
IV.
ISSUES
[12]
The first issue to be addressed is the
appropriate standard of review applicable to the Commission’s decision that it
does not have jurisdiction to deal with the complaint.
[13]
The principal issue raised by this application
for judicial review is whether the Commission erred in its interpretation of
the phrase “lawfully present in Canada” as
requiring that individuals either be citizens or have immigration status.
[14]
The Applicant also challenges the
constitutionality of paragraph 40(5)(a) of the Act, specifically, whether that
section infringes subsection 15(1) of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”).
V.
PARTIES’ SUBMISSIONS
A.
Applicant’s Submissions
[15]
Concerning the issue of the applicable standard
of review, the Applicant submits that this is a jurisdictional question,
reviewable on the standard of correctness pursuant to the decision in Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph 59.
[16]
In respect of the main issue, that is whether
the Commission erred in its interpretation of paragraph 40(5)(a) of the Act,
the Applicant argues the Commission erred in failing to consider the different
between the use of the phrase “lawfully present”
in paragraph 40(5)(a) and the word “status” in
subsection 40(6) of the Act. He submits that when Parliament uses different
words relative to the same subject, that choice is considered intentional and
indicates a change in meaning; see Ruth Sullivan, Construction of Statutes,
5th ed. (Markham: LexisNexis Canada Inc., 2008) at pages 214-216.
[17]
The Applicant argues that the word “status”
subsumes whether an individual is “lawfully present”,
“entitled to return to Canada”, “a Canadian citizen”, or “lawfully
admitted to Canada for permanent residence”. As such, lawful presence is
not limited to whether an individual is a temporary or permanent resident under
the IRPA.
[18]
The Applicant submits that the Court should
depart from the precedent set in Forrest v. Canada (Attorney General)
(2004), 357 N.R. 168 (F.C.A.) because the underlying application meets the
criteria for re-considering a previously decided matter, as set out in Canada
(Attorney General) v. Bedford, [2013] 3 S.C.R. 1102.
[19]
As for the constitutional question, the
Applicant argues that paragraph 40(5)(a) violates subsection 15(1) of the
Charter because it draws a distinction based on immigration status by barring
prisoners who do not have immigration status from filing human rights
complaints, while allowing prisoners who have immigration status to file
complaints, relying on the decision in Quebec (Attorney General) v. A., [2013]
1 S.C.R. 61 at paragraph 85.
[20]
The Applicant acknowledges the jurisprudence
that rejects immigration status as an analogous ground; see the decision in Canadian
Doctors for Refugee Care et al. v. Attorney General of Canada et al., 2014
FC 651 at paragraphs 856-870. However, the Applicant submits his case is
distinguishable because he cannot change his immigration status due to his
inadmissibility status arising from his criminal conviction.
[21]
Further, the Applicant submits that the Supreme
Court of Canada has held that non-citizens are a vulnerable group and suffer
from political marginalization, stereotyping and historical disadvantage; see
the decision in Lavoie v. Canada, [2002] 1 S.C.R. 769 at paragraph 45.
[22]
The Applicant further argues that paragraph
40(5)(a) cannot be saved by section 1 of the Charter because it does not
fulfill a pressing and substantial objective. He submits that the exclusion of
individuals present in Canada from the protections of the Act is not rationally
connected to the objective of the Act, which is a quasi-constitutional statute
aimed at extending the laws in Canada to give effect to the principles of
equality and non-discrimination.
B.
Respondent’s Submissions
[23]
The Respondent argues that the standard of
reasonableness applies where a tribunal is interpreting its home statute. In
this regard, he relies on the Supreme Court of Canada’s decision in Alberta
(Information and Privacy Commissioner) v. Alberta Teacher’s Association,
[2011] 3 S.C.R. 654 at paragraphs 33 and 34.
[24]
The Respondent submits that the Commission’s
power to deal with complaints is limited by the provisions of the Act.
[25]
The Respondent notes that pursuant to section 3
of the Immigration Guidelines, SI/80-125 (the “Guidelines”), a person is
considered lawfully present in Canada for the purposes of section 40 if that
individual is a citizen, permanent resident, visitor, or person in possession
of a valid Minister’s permit. He relies on the decision in Forrest, supra
at paragraph 9 for the proposition that the Commission does not have
jurisdiction to deal with a complaint of discrimination by a complainant who is
incarcerated and who does not have status.
[26]
The Respondent argues that a liberal and purposive
interpretation of the Act cannot replace a textual analysis of its terms,
relying in this regard on the decision in Canada (Canadian Human Rights
Commission) v. Canada (Attorney General),[2011] 3 S.C.R. 471 at paragraph
62. He submits that in the present case, there is a clear statutory restriction
on the jurisdiction of the Commission to deal with complaints from individuals
who lack immigration status in Canada.
[27]
The Respondent notes that legislative history
can assist in interpreting legislation and submits that in drafting subsection
40(5), the House of Commons debates show that Parliament chose not to follow a
recommendation to remove the word “legally”. The
Respondent submits that this demonstrates that Parliament did not intend that
the Act apply to foreign nationals in Canada without immigration status.
[28]
As for the constitutionality of paragraph
40(5)(a) of the Act, the Respondent argues that neither immigration status nor
status as an incarcerated individual is an analogous ground of discrimination
for the purpose of subsection 15(1) of the Charter.
[29]
In this regard, the Respondent relies on the
decisions in Toussaint v. Canada (Attorney General) (2011), 420 N.R. 364
at paragraph 99 (F.C.A.), and Alcorn v. Canada (Commissioner of
Corrections), 2002 FCA 154. Further, in Chiarelli v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 711 at page 736 the Supreme
Court of Canada rejected the proposition that status as a permanent resident
convicted of a criminal offence is an analogous ground.
[30]
The Respondent submits there is no merit to the
Applicant’s argument that his immigration status is immutable, because that
status is not a personal characteristic. Rather, it is the Applicant’s criminal
conviction and his resulting status as inadmissible that makes his immigration
status unchangeable. The Respondent argues that the Applicant’s lack of status
and resulting disadvantage arises from his criminality, rather than a social
condition rooted in stereotyping.
[31]
The Respondent further argues that there is a
reasonable correspondence between the limit in paragraph 40(5)(a) of the Act
and the Applicant’s circumstances, having regard to the purpose of subsection
40(5). The purpose of that subsection is to define the limits of the
Commission’s jurisdiction. The Respondent submits that the exclusion of the
Applicant from the application of the Act is consistent with the purpose of
protecting against discriminatory practices with a sufficient connection to
Canada.
[32]
Finally, the Respondent argues that if paragraph
40(5)(a) violates subsection 15(1) of the Charter, the breach is justified
under section 1 of the Charter and the test set out in R v. Oakes,
[1986] 1 S.C.R. 103 at paragraphs 69-71.
[33]
The Respondent submits that the Act’s objective
is pressing and substantial because Parliament has a legitimate interest in
defining the limits of its application and ensuring that individuals who are
lawfully present in Canada have the rights contemplated by section 2 of the
Act.
[34]
The Respondent also argues that limiting the
Commission’s jurisdiction to hear complaints from individuals lawfully present
in Canada is rationally connected to the objective of ensuring that only
discriminatory practices with sufficient connection are within the Commission’s
jurisdiction.
[35]
The Respondent submits that the limitation in
the Act is minimally impairing because the Applicant still has recourse to the
Charter to challenge any violations to his rights.
VI.
DISCUSSION AND DISPOSITION
[36]
The first issue to be addressed is the
applicable standard of review. The central issue in this application is the
determination that the Commission lacked jurisdiction to entertain the
Applicant’s complaint.
[37]
The Applicant submits that this is a “true” jurisdictional issue reviewable on the standard
of correctness.
[38]
I do not agree with this argument in light of
the 2011 decision of the Supreme Court of Canada in Alberta (Information and
Privacy Commissioner), supra at paragraphs 33 and 34, where the
Court said the following:
[33] Finally, the timelines question does
not fall within the category of a “true question of jurisdiction or vires”. I
reiterate Dickson J.’s oft-cited warning in Canadian Union of Public Employees,
Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts
“should not be alert to brand as jurisdictional, and therefore subject to
broader curial review, that which may be doubtfully so” (p. 233, cited in
Dunsmuir, at para. 35). See also Syndicat des professeurs du collège de
Lévis-Lauzon v. CEGEP de Lévis-Lauzon, [1985] 1 S.C.R. 596, at p. 606, per
Beetz J., adopting the reasons of Owen J.A. in Union des employés de commerce,
local 503 v. Roy, [1980] C.A. 394. As this Court explained in Canada (Canadian
Human Rights Commission), “Dunsmuir expressly distanced itself from the extended
definition of jurisdiction” (para. 18, citing Dunsmuir, at para. 59).
Experience has shown that the category of true questions of jurisdiction is
narrow indeed. Since Dunsmuir, this Court has not identified a single true
question of jurisdiction…
[34] … However, in the absence of argument
on the point in this case, it is sufficient in these reasons to say that,
unless the situation is exceptional, and we have not seen such a situation
since Dunsmuir, the interpretation by the tribunal of “its own statute or
statutes closely connected to its function, with which it will have particular
familiarity” should be presumed to be a question of statutory interpretation
subject to deference on judicial review.
[39]
The prevailing view is that interpretation by a
tribunal of its home statute should be reviewed on the standard reasonableness.
According to the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at paragraph 47, the reasonableness standard requires that a decision be
justifiable, transparent and intelligible and fall within a range of possible
acceptable outcomes that are defensible in light of the facts and the law.
[40]
In order to determine if it had jurisdiction to
entertain the Applicant’s complaint the Commission first had to interpret
subsections 40(5) and 40(6) of the Act. For ease of reference, I repeat those
provisions below:
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No complaints to be considered in certain cases
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Recevabilité
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40.(5) No complaint in relation to a discriminatory practice
may be dealt with by the Commission under this Part unless the act or
omission that constitutes the practice:
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40.(5) Pour
l’application de la présente partie, la Commission n’est validement saisie
d’une plainte que si l’acte discriminatoire :
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(a) occurred in Canada and the victim of the practice was at
the time of the act or omission either lawfully present in Canada or, if
temporarily absent from Canada, entitled to return to Canada;
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a) a eu lieu
au Canada alors que la victime y était légalement présente ou qu’elle avait
le droit d’y revenir;
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(b) occurred in Canada and was a discriminatory practice
within the meaning of section 5, 8, 10 or 12 in respect of which no
particular individual is identifiable as the victim;
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b) a eu lieu
au Canada sans qu’il soit possible d’en identifier la victime, mais tombe sous
le coup des articles 5, 8, 10 ou 12;
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(c) occurred outside Canada and the victim of the practice
was at the time of the act or omission a Canadian citizen or an individual
lawfully admitted to Canada for permanent residence
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c) a eu lieu
à l’étranger alors que la victime était un citoyen canadien ou qu’elle avait
été légalement admise au Canada à titre de résident permanent.
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Determination of status
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Renvoi au
ministre compétent
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40.(6) Where a question arises under subsection (5) as to the
status of an individual in relation to a complaint, the Commission shall
refer the question of status to the appropriate Minister and shall not
proceed with the complaint unless the question of status is resolved thereby
in favour of the complainant.
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40.(6) En
cas de doute sur la situation d’un individu par rapport à une plainte dans
les cas prévus au paragraphe (5), la Commission renvoie la question au
ministre compétent et elle ne peut procéder à l’instruction de la plainte que
si la question est tranchée en faveur du plaignant.
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[41]
The Commission was required, by the Act, to
request an opinion from the Minister. The Minister provided his opinion as to
the Applicant’s status. That opinion was considered by the Investigator who
conducted an investigation pursuant to paragraph 41(1)(c) of the Act and
prepared a Report.
[42]
The Report details the steps taken to determine
the Applicant’s immigration status. The parties were not asked for their
position on the issue but were advised that such inquiry was being made to the
Minister. Counsel for the Applicant wrote to suggest that the appropriate
“Minister” in this case was either the Attorney General of Canada or the
Minister of Justice.
[43]
The Commission, through the Investigator,
communicated with the Minister of Citizenship and Immigration and
Multiculturalism. A response was received from the Deputy Minister of
Citizenship and Immigration Canada, by letter dated August 1, 2013. The Deputy
Minister provided details about the Applicant’s status in Canada, concluding
that the Applicant “did not have any status as a
temporary resident, permanent resident, or citizen in Canada” at the
relevant time, and was not lawfully present in Canada.
[44]
Relative to the Commission’s interpretation of
subsection 40(6) of the Act, I see no error in the Investigator’s decision to
communicate with the Minister of Citizenship and Immigration, rather than with
the Attorney General or the Minister of Justice. The Minister of Citizenship
and Immigration is tasked with the regulation of the admission of non-citizens into
Canada and with establishing the criteria by which Canadian citizenship is
obtained.
[45]
As for the interpretation of subsection 40(5) of
the Act, in Forrest v. Canada (Attorney General) (2006), 357 N.R. 168
(F.C.A.) the Federal Court of Appeal considered a human rights complaint
arising from similar facts as in the within proceedings. In that decision, the
Federal Court of Appeal clearly rejected the argument that a non-citizen who is
lawfully incarcerated in Canada, as the result of criminal proceedings in
Canada, is “lawfully present” in Canada, for the
purposes of the Act. At paragraphs 8 and 9 of that decision, the Court stated
the following:
[8] Basically, the appellant submits on
appeal as his first argument that he is lawfully present in Canada within the
terms of paragraph 40(5)(a) of the Act because he is here in lawful custody.
[9] In my respectful view, the appellant
looks at the issue from the wrong end of the telescope. His custody is lawful
because he is unlawfully present in Canada. It is also lawful because he has
been convicted of serious crimes…From an immigration perspective, the legality
of his custody is determined both by the legality of his presence in Canada and
his criminal convictions, not the other way around as suggested by the appellant.
The fact that he is in lawful custody does not clothe him with immigration
status.
[46]
Insofar as the Federal Court of Appeal has
addressed the interpretation of section 40(5) of the Act, that decision is
binding upon me by operation of the doctrine of stare decisis. That
doctrine requires that lower courts make decisions that are consistent with
previous decisions of higher courts; see the decision in Pfizer Canada v.
Apotex Inc. (2014), [2015] 465 N.R. 306 at paragraph 114.
[47]
As noted above, the merits of the Commission’s
decision are also reviewable on the standard of reasonableness.
[48]
The Investigator’s recommendations, once adopted
by the Commission, are to be considered as the reasons for the decision of the
Commission. In this regard, I refer to the decision in Sketchley v. Canada
(Attorney General), [2006] 2 F.C.R. 392 at paragraph 37.
[49]
I am satisfied that the Investigator conducted
the necessary inquiries in a thorough and neutral manner, having regard to the
nature of the question in issue. The Report refers to the Federal Court of
Appeal’s interpretation of subsection 40(5) of the Act in Forrest, supra.
[50]
The Commission’s interpretation of subsections
40(5) and 40(6), in asking the Minister to determine the status of the
Applicant, accords with the law. Its decision was reasonable.
[51]
I turn now to the arguments about an alleged
breach of the Applicant’s rights pursuant to subsection 15(1) of the Charter,
which provides as follows:
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Equality
before and under law and equal protection and benefit of law
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Égalité devant
la loi, égalité de bénéfice et protection égale de la loi
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15. (1) 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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15. (1) 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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[52]
The accepted approach to a section 15 Charter
argument is set out in Quebec (Attorney General) v. A. [2013] 1 S.C.R.
61.
[53]
That analysis requires first, consideration of
whether the impugned law creates a distinction based on an enumerated or
analogous ground, and second, whether the distinction creates a disadvantage by
perpetuating prejudice or stereotyping; see the decision in Quebec (Attorney
General), supra at paragraph 86.
[54]
In my opinion, there is no such distinction
arising in the present proceedings.
[55]
In its decision in Toussaint v Canada
(Attorney General) (2011), 420 N.R. 364 at paragraph 99, the Federal Court
of Appeal found that immigration status is not an analogous ground for the
purposes of subsection 15(1) because it is not an immutable personal
characteristic, that is a personal characteristic that is unchangeable, or can
only be changed at great personal cost; see also the decision in of the Ontario
Court of Appeal in Ishrad (Litigation Guardian of) v. Ontario (Minister of
Health) (2001), 55 O.R. (3d) 43 (C.A.) at paragraphs 133 -136.
[56]
Status as an incarcerated individual has also
been rejected as an analogous ground; see the decision in Alcorn v. Canada
(Commissioner of Corrections), 2002 FCA 154. Further in Chiarelli v.
Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at
page736, the Supreme Court of Canada found that status as a permanent resident
convicted of a criminal offence is not an analogous ground.
[57]
Since there is no legal basis to support a
challenge pursuant to subsection 15(1) of the Charter, it is not necessary to
engage with the arguments advanced pursuant to section 1.
[58]
In the result, this application for judicial
review is dismissed. The Respondent does not seek costs. In the exercise of my
discretion pursuant to the Federal Courts Rules, SOR/98-106, no costs
are awarded.
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