Liebmann v. Canada (Minister of National Defence), 2001 FCA 243

Date: 20010731

Docket: A-602-98

2001 FCA 243

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

LIEUTENANT (N) ANDREW S. LIEBMANN

Appellant

-and-

MINISTER OF NATIONAL DEFENCE, CHIEF OF DEFENCE STAFF and HER MAJESTY THE QUEEN

Respondents

-and-

LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA and CANADIAN JEWISH CONGRESS

Interveners

                                                        Reasons for Judgment

Sexton J.A.

[1]                 Lieutenant Andrew S. Liebmann was such a proven and accomplished member of the Canadian Forces' Naval Reserve that he was nominated for the important post of executive assistant to the Commander of the Canadian Forces Task Force in the Middle East during the Persian Gulf crisis. Nonetheless, he was not appointed to the position. The only objection taken to his nomination was his religion. He was Jewish. This appeal deals with his claim that the refusal to appoint him to the position to which he was nominated constituted discrimination contrary to s.15(1) of the Canadian Charter of Rights and Freedoms.

Facts

[2]                 The appellant joined the Naval Reserve in 1983 and served in a variety of roles while completing a university degree and during subsequent employment as a public affairs specialist. By late 1990, he had attained the rank of Lieutenant and had qualified as a ship's officer of the watch and as a clearance diver. He was serving as an officer in HMCS Discovery, the Naval Reserve Division (or unit) in Vancouver. When the events giving rise to this litigation took place, he was employed by the government of British Columbia as a communications officer, serving his reserve commitment by attending at his unit several evenings a week.

[3]                 On August 4, 1990, Iraq invaded and occupied Kuwait. During the weeks that followed, Canada commenced Operation Friction - the deployment of a contingent of military forces to the Persian Gulf region in order to enforce a number of resolutions passed by the United Nations Security Council pursuant to Chapter VII of the U.N. Charter.^[1] The contingent, known as Canadian Forces Middle East (CFME), was commanded by Commodore Kenneth Summers. His headquarters was in the Emirate of Bahrain. Part of the headquarters' establishment included an Executive Assistant (EA) on the commander's small personal staff.

[4]                 At the time of CFME's deployment, Canada's commitment of forces was open-ended. As such, plans were developed to rotate personnel and units after a period of time so as to maintain the force at an optimum level of readiness. On December 24, 1990, the Commander of Maritime Command, who was responsible to the Chief of Defence Staff (CDS) for the generation of personnel to fill certain headquarters positions, caused a message to be sent to all Naval Reserve Divisions.    A portion of that message called for nominations of officers qualified to fill the position of EA to the commander beginning in March 1991.   

[5]                 The appellant, who was highly motivated to participate in the Persian Gulf operation and who met all of the requirements set out in the message, was nominated for the EA position by his Commanding Officer. A message to that effect was sent on January 11, 1991.

[6]                 The Maritime Command staff officers charged with recommending an officer for the EA position seem to have initially looked favourably upon the appellant's nomination. On January 21, 1991, they sent a message to the Directorate of Military Manning at National Defence Headquarters, recommending that the appellant be "hired" under a reserve force contract. The message indicated that he was being considered for the EA position. The Commanding Officer Naval Divisions (the commander of all naval reserve units) concurred in the recommendation. Upon receipt of a copy of this message, the appellant, with the assistance of the regular force Administration Officer at HMCS Discovery, began to make more specific preparations to deploy to Bahrain, following a set of "joining instructions" which had been faxed to him.

[7]                 At some point during the same time period, the Maritime Command staff became aware that the appellant was Jewish.

[8]                 At that time, the Canadian Forces had no formal policy regarding the consideration of personal characteristics such as religion in the selection of personnel for employment in non-peacekeeping operations. Several staff officers and their superiors at both Maritime Command and National Defence Headquarters allegedly discussed the possibility that under the circumstances, the appellant's religion might have a detrimental impact upon his ability to effectively carry out the duties of the EA position and upon his personal safety. The result of these discussions was a decision that the appellant would not be selected for the position. In the end, the incumbent EA was not replaced.

[9]                 The appellant was informed in late January or early February of 1991 that he had not been selected for the EA position. He was upset and disappointed. He contacted one of the staff officers who had participated in the decision-making process and was told that the superior officers had "decided that it was better not to send a Jew to the Middle East."

[10]            The appellant pursued several avenues of redress, finally bringing an action in the Trial Division of this Court. In his prayer for relief he sought a declaration that the process by which his nomination was considered had infringed his constitutional right to equality under the Canadian Charter of Rights and Freedoms as well as a number of statutory rights.    He also sought declarations and injunctions relating to Canadian Forces Administrative Order (CFAO) 20-53, Policy for Employment of Canadian Forces Personnel on Peacekeeping Duty, which foresees the possibility that certain personnel may be restricted from participating in peacekeeping operations due to the "cultural, religious or other sensitivities of the parties or host country."

Decision Appealed From

[11]            Following a trial that covered eleven days of testimony and argument, the Trial Judge found that "[the appellant] more than adequately fulfilled the requirements for the posting,"^[2] and that "the evidence clearly supports the [appellant's] allegation that he was not selected for the position of Executive Assistant because of his religion."^[3] He was "satisfied that Lieutenant Liebmann did have legitimate grievances with respect to the manner in which the defendants conducted themselves in the selection process."^[4] Despite these findings, he did not directly address the appellant's allegation that this conduct had infringed his right to equality.

[12]            The Trial Judge did give some consideration to the constitutionality of CFAO 20-53, finding that it was not contrary to the equality provisions of the Charter.    However, he noted that since Operation Friction was not a peacekeeping mission, there was no basis for the application of either it or any other policy that preceded it to the appellant's situation. In the result, he dismissed the appellant's claim.

Issues

[13]            The appellant appeals to this Court, essentially repeating the claims made in the Court below. He is supported by two interveners who have focussed their submissions upon the constitutionality of CFAO 20-53 and the policies that preceded and succeeded it.

[14]            My analysis, I will address the following issues:

1.              Should this Court inquire into the constitutionality of CFAO 20-53;

2.              Were the appellant's rights to equality under s. 15 of the Charter limited by the process by which his nomination for the EA position was considered; and

3.              If the appellant's equality rights were limited, were those limits "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Relevant Constitutional Provisions

[15]            The Canadian Charter of Rights and Freedoms^[5]

Analysis

Issue 1: CFAO 20-53, its Predecessors and Successors

[16]            The appellant and the interveners seek a declaration that CFAO 20-53, as it was amended, is unconstitutional. Further, they seek orders enjoining the Chief of Defence Staff and his delegates from considering race, religion or ethnic origin in deciding whether a CF member will be deployed on an operational posting.

[17]            It is important to note that CFAO 20-53 was not applied to preclude the appellant from participating in Operation Friction. The order was not issued until March, 1991, over a month after the appellant's nomination for service with CFME was decided upon. Moreover, the policy set out in CFAO 20-53 applied only to the selection of personnel for peacekeeping operations. Operation Friction was not a peacekeeping operation. In fact, at the time the impugned decision was made, Canada was engaged in active hostilities against Iraq.

[18]            Thus, the order would not have applied to the selection of the appellant even if it had been in force in January and February of 1991. Similarly, screening policies contained in directives of the Deputy Chief of Defence Staff that were replaced with the promulgation of CFAO 20-53, all dealt expressly with peacekeeping operations and hence did not apply to the appellant's nomination. Indeed, the evidence of the decision-makers in the case at bar clearly demonstrates that they did not purport to apply any formal screening policy at all. The appellant and the respondents both concede this. Nonetheless, the appellants and interveners submit that the Court should hear and determine the constitutional challenge to CFAO 20-53.

[19]            All parties agree that the appellant had standing at trial to attack CFAO 20-53, since it could still have been applied so as to preclude his participation in a peacekeeping operation (if there was one) on the ground of his religion. The passage of time, however, has changed this situation. CFAO 20-53 no longer exists. It was expressly superceded on December 9, 1999 by Canadian Forces General Message (CANFORGEN) 113/99, which sets out a general policy regarding the employment of members within the Canadian Forces, not confined to peacekeeping.

[20]            The appellant and the interveners argue that CANFORGEN 113/99 carries forward the policy articulated in the former CFAO 20-53. As such, they say, an inquiry into the constitutionality of the CFAO is not moot, since a finding that it was unconstitutional would have an impact on the respondents' authority to apply the current policy.

[21]            In Borowski v. Canada (Attorney General),^[6] the Supreme Court set out a two step approach to the doctrine of mootness. First, it is necessary to determine whether there is a "live controversy" - a "tangible and concrete dispute," such that the issues before the Court have not become academic. If there is no such live controversy, the issues are moot. Nevertheless, at the second stage of the test, the Court may choose to exercise its discretion to address a moot issue if the circumstances warrant.^[7]

[22]            In my opinion, the constitutionality of CFAO 20-53 is a moot issue. The policy is no longer in effect. The policy that superceded it, CANFORGEN 113/99 (which did not come into force until more than one year after the trial judgment was released), contains different wording than CFAO 20-53 and would have to be evaluated on its own merits.   

[23]            Thus, I must move on to the second part of the test set out in Borowski and decide whether this Court should exercise its discretion to address the moot issue. In doing so, reference must be made to the various rationales for the existence of the mootness doctrine - the requirement of an adversarial context, such that the issue can be well and fully argued by parties who have a stake in the outcome; the need to ration scarce judicial resources; and the Court's awareness of its proper role in the law-making process.^[8]

[24]            In my opinion, the key considerations in this case are the first and third rationales. There is no doubt that the parties at trial argued their positions with respect to the constitutionality of CFAO 20-53 zealously. Thus, this Court has before it a complete record related to that policy. However, it is clear that any finding with respect to CFAO 20-53 could impact only that policy. Given the difference in wording between the two policy statements, it is impossible for this Court to conduct a proper and complete Charter analysis of the CANFORGEN 113/99 policy. The record contains no evidence showing how that policy has been or is being applied. Furthermore, even if a prima facie breach of s.15 were established, the respondents have not been provided with the opportunity to lead evidence relevant to the justification of any limitation to Charter rights. At trial, the respondents did lead considerable s. 1 evidence with respect to CFAO 20-53. However, because it did not exist at that time, they could not have done so with respect to CANFORGEN 113/99. During the hearing, they indicated that if the current policy were to be subjected to constitutional scrutiny, they would wish to have the opportunity to lead additional evidence related to it.

[25]            In asking this Court to make declarations and issue injunctions relating to the factors that the respondents can consider in making future employment decisions pursuant to CANFORGEN 113/99, the appellant and the interveners are asking this Court to interfere with the respondent's policies on the basis of an unavoidably incomplete evidentiary record. In my view, we should decline to do so. I do not accept the submission made by counsel on behalf of B'Nai Brith that if CANFORGEN 113/99 infringes s. 15, it is incapable of being saved by s. 1 under any possible circumstances.

Issue 2: The Appellant's Equality Rights

[26]              Section 15 of the Charter deals with a person's equality rights with respect to the "law". However, it is now well established that this term should not be given such a narrow meaning as to deprive individuals of protection from discrimination on the part of government actors. In Slaight Communications Inc. v. Davidson,^[9] the Supreme Court of Canada held that the Charter is applicable to administrative decisions made pursuant to statutory authority. Lamer J., as he then was, dissented in the result but wrote for a panel that was unanimous on this point:

As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so.^[10]

[27]            In the more recent case of Eldridge v. British Columbia (Attorney General),^[11] the Supreme Court unanimously applied this approach to find that a decision made under a delegated statutory authority was contrary to s. 15.

[28]            In the case at bar, there was no selection policy to apply to the appellant's nomination and circumstances. However, the impugned decision was made under delegated statutory authority. The National Defence Act,^[12] charges the CDS with the control and administration of all of the Canadian Forces:

[29]            The Queen's Regulations and Orders provide a basis for the CDS's delegation of his authority to various officers. Thus, in this case, all of the officers involved in the process of considering the appellant's nomination were acting pursuant to the CDS's statutory authority to control and administer the Canadian Forces. As such, the decision to not appoint him to the EA position is subject to scrutiny under s. 15 of the Charter.

[30]            In the recent case of Law v. Canada (Minister of Employment and Immigration),^[13] the Supreme Court of Canada summarized the proper approach to a s. 15(1) analysis. Iacobucci J., writing for a unanimous Court, confirmed that the onus of establishing an infringement of a Charter right rests with the person claiming the right^[14] and outlined the following general approach:

... a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?^[15]

[31]            The Trial Judge's findings of fact establish that the appellant has made out the first two elements of the test.    The decision-makers who considered the appellant's nomination drew a distinction between him and other members of the Canadian Forces, and subjected him to differential treatment on the basis of a personal characteristic - his religion. The respondents did not contest these findings before us.

[32]            There remains only to consider the final portion of the test: did the decision-makers' differential treatment of the appellant discriminate against him within the meaning of s. 15? In answering this question, the Court must bear in mind the purposes of the equality protection. These purposes were articulated by La Forest J. in Andrews v. Law Society of British Columbia^[16] in a passage referred to by Iacobucci J. in Law:

La Forest J. ... stated that the equality guarantee was designed to prevent the imposition of differential treatment that was likely to "inhibit the sense of those who are discriminated against that Canadian society is not free or democratic as far as they are concerned", and that was likely to decrease their "confidence that they can freely and without obstruction by the state pursue their and their families' hopes and expectations of vocational and personal development".^[17]

The inquiry into whether a person's dignity has been demeaned must be both subjective and objective, with the objective analysis considered from the perspective of a person in circumstances similar to those of the claimant.^[18]

[33]            In my opinion, the differential treatment of the appellant's nomination amounted to discrimination in the constitutional sense. The appellant testified that he had joined the Naval Reserve, in part :

... to do some national service and work with other Canadians from across Canada. I'm proud to be a Canadian citizen and Canada's been good to me and my family, and I wanted to give something back.

[34]            Through his seven years of training and professional development, the appellant acquired skills and knowledge that qualified him for the EA position for which he was nominated.    However, by their actions, the decision-makers at Maritime Command and National Defence Headquarters denied the appellant the opportunity for professional and personal development that was presented by the position. He was also denied the benefit of applying his skills and knowledge in order to serve his country and the United Nations in an operational theatre.

[35]            There can be no doubt that the decision had a profound impact upon the appellant's human dignity, the very thing that s. 15(1) is meant to protect. The appellant testified that:

... up until that very point I thought that things were unlimited for me. ... and all of a sudden I found out that the really good jobs just weren't going to be open to me because I'm Jewish, because although I was good enough to join the forces and good enough to do jobs in Canada, I just wasn't Canadian enough to send overseas.    ... I wasn't a good representative of my country.

...

I was upset that I'd been selected for a job by the Navy and at the time and at that place I was the best person for the job ... but I [sic] was then overturned by somebody based only on hearing a German last name and checking out my religion. And so I was shattered in one way and angry in another.

[36]            On the basis of this evidence, the respondents concede that the appellant's dignity was demeaned in the subjective sense. However, while arguing that the objective portion of the analysis of whether the appellant's dignity had been demeaned had not been made out, counsel for the respondents was unable to point out how this could be so. Indeed, in my opinion, any reasonable observer in similar circumstances would conclude that the manner in which the appellant was treated did demean his dignity.

[37]            The record before the Court establishes that although the decision-makers allegedly felt that the appellant's religion might cause him to be less effective and less safe while carrying out his duties in an Arab state, they made little (if any) attempt to collect evidence that might validate or invalidate their concerns. There seems to have been no real consideration of the political climates of Bahrain or Saudi Arabia or the manner in which a Jewish Canadian officer might be perceived by military officials or citizens of those countries. In fact, one of the staff officers conducting an "appreciation" of the situation admitted to not having been aware of the politics of the region. No efforts were made to ascertain the views of any of the states in the Persian Gulf region. No attempt was made to determine the approaches being taken by other members of the coalition who were deploying forces to the region. In fact, the evidence shows that the United States had more Jewish personnel in the region than the total of all Canadian forces.    In short, the analysis seems to have been conducted in a factual and evidentiary vacuum.

[38]            By confining whatever analysis they made to a simplistic "Jewish officer in an Arab state" model, the decision-making officers applied stereotypical thinking and based their decision upon presumed characteristics of both Jews and Arabs. This way of thinking had the effect, in essence, of imposing upon the appellant the burden of establishing that his religion would not have a detrimental impact upon either his safety or his ability to carry out his duties. It also had the effect of perpetuating the view that the appellant was a less worthy member of the Canadian Forces and, therefore, of Canadian society as a whole.

[39]            Therefore, I conclude that Chief of Defence Staff, through the actions of his delegates who considered the nomination of the appellant for the position of Executive Assistant to the Commander of CFME, limited his rights to equal treatment under the law and equal benefit of the law in a discriminatory manner, contrary to s. 15 of the Charter.

Issue 3: Section 1

[40]            It only remains to determine whether the limitation of the appellant's equality rights imposed by the refusal to appoint him to the EA position because of his religion was a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. At this stage of analysis, the burden falls upon the respondents to show, on the preponderance of probabilities, that the limitation was reasonable and demonstrably justified.^[19]

[41]            In the case at bar, the respondents have failed to fulfill their burden. Their written submissions advanced no argument attempting to show that the impugned decision was reasonable or demonstrably justified. During the oral hearing, their counsel expressly told the Court that no such arguments would be advanced.

Conduct of the Respondents

[42]            There is one other aspect of the respondents' conduct that requires comment. Before the Trial Judge the respondents' evidence was that the appellant did not get the EA position because there was no position to fill.    The respondents' pleadings were also to this effect. It appears that the respondents took the position that the decision not to send the appellant to the Gulf had nothing to do with his religion.

[43]            The Trial Judge did not believe the respondents' witnesses.

I am also satisfied that the evidence does not support the defendant's contention that the plaintiff did not get the position because there was no position to fill and that MARCOM was so advised some time on or about January 21, 1991. On the contrary, what the evidence demonstrates is that the extension of the current Executive Assistant's term of duty only arose after it became apparent that the defendants did not want to send Lieutenant Liebmann because of his religion but were concerned over the implications of letting the truth be known.

...

Furthermore, the fact that the defendants continued processing [another nominee] for the position and advised him as late as February 4, 1991 that he would be going to the Middle East, negates their contention that the decision not to replace the current Executive Assistant was made during the third week of January 1991.

...

Even the three people directly involved in the selection process for the position of Executive Assistant had no records or files of any kind, in spite of the plaintiff's stated intention of filing a grievance.

The conduct of the respondents described by the Trial Judge calls for the disapproval of this Court.

[44]            It should go without saying that when the respondents are faced with a complaint of discrimination under section 15, the proper course of action is to face the issue squarely, make an honest assessment of whether the action taken was discriminatory and if it appears to be, whether it can be justified. Pleadings, evidence and argument must then be addressed to these issues.

Conclusion

[45]            I would allow that part of the appeal dealing with the process by which the respondents considered his nomination for the EA position.    The appellant is entitled to a declaration that the refusal to select him for duty with CFME because of his religion was unconstitutional, being contrary to his rights to equality under the Canadian Charter of Rights and Freedoms. I would dismiss the other parts of the appeal.

[46]            I would order the respondents to pay the appellant's costs both at trial and in this appeal.

                  "J. Edgar Sexton"            

J.A.                  

"I agree

    Marshall Rothstein"

"I agree

    John M. Evans J.A."