Date: 20061208
Docket: A-245-04
Citation: 2006 FCA 400
CORAM: RICHARD
C.J.
LÉTOURNEAU J.A.
NOËL
J.A.
BETWEEN:
IRVINE FORREST
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
appeal from a decision of Gibson J. of the Federal Court (judge) who rejected
the appellant’s application for judicial review of a decision of the Canadian
Human Rights Commission (CHRC). The CHRC decision related to a complaint of
discrimination made by the appellant against the Correctional Services of
Canada (CSC).
[2]
The CHRC
refused to deal with the appellant’s complaint. It was of the view that the
complaint was beyond its jurisdiction because the minister of Citizenship and
Immigration did not resolve the question of the status of the appellant in
favour of the appellant. It based its decision on subsections 40(5) and (6) of
the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act) which read:
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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
(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;
(b)
occurred in Canada and was a discriminatory practice within the meaning of
section 5, 8, 10, 12 or 13 in respect of which no particular individual is
identifiable as the victim; or
(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.
(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.
[…]
(5)
Pour l’application de la présente partie, la Commission n’est validement
saisie d’une plainte que si l’acte discriminatoire :
a) a eu lieu au Canada alors que la victime
y était légalement présente ou qu’elle avait le droit d’y revenir;
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, 12
ou 13;
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.
(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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(Emphasis added)
[3]
On appeal,
the appellant submits that the CHRC erred in coming to the conclusion that it
did. He also argues in the alternative that subsection 40(5) of the Act is
inoperative because it contravenes sections 7, 12 or 15 of the Canadian
Charter of Rights and Freedoms (Charter).
[4]
Section 7
of the Charter protects everyone’s right to life, liberty and security of the
person while section 12 offers protection against cruel and unusual treatment
or punishment. Section 15 is the section that gives every individual the right
to equality before and under the law as well as the equal protection and
benefit of the law without discrimination.
[5]
These
three sections read as follows:
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7. 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.
12. Everyone has the right not to be subjected to
any cruel and unusual treatment or punishment.
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.
(2)
Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
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7. 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.
12. Chacun a droit à la protection contre tous
traitements ou peines cruels et inusités.
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.
(2)
Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou
activités destinés à améliorer la situation d'individus ou de groupes
défavorisés, notamment du fait de leur race, de leur origine nationale ou
ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de
leurs déficiences mentales ou physiques.
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[6]
The reviewing judge
neatly summarized at paragraphs 4 and 5 of his decision the appellant’s factual
situation in the following terms which I reproduce :
The Applicant is a citizen of Jamaica. He lawfully entered Canada for the first time in
1988. After a short stay, he returned to Jamaica. He came to Canada for the second time in 1989. His second arrival
in Canada was with visitor
status. His visitor status continued to the 31st of January, 1993.
Before the expiration of the Applicant’s visitor status and related work
permit, the Applicant was charged with an offence. He was acquitted on that
initial charge. However, the Applicant was subsequently charged for and
convicted of a series of offences resulting in the imposition of a term of imprisonment
of eighteen (18) years. The Applicant began to serve his sentence on the 12th
of May, 1995. He continues to serve that sentence.
Following a hearing on the 23rd of
November, 1995, the Applicant was ordered deported from Canada. The deportation order
remains in effect but its implementation is stayed.
These
facts are not disputed.
[7]
However, the
appellant contends that the CSC discriminated against him and failed to provide
an environment free of harassment. The discrimination would take the form of
unequal treatment for Black inmates from correctional officers and staff
members, assault, abuses, threats and intimidation. The unequal treatment, it
is alleged, relates to the issues of privileges such as temporary absences,
parole and family visits as well as access to correctional programs. He further
alleges that his attempts to resolve the issue through the CSC grievance
procedure have been unsatisfactory. This is the reason why he lodged a
complaint with the CHRC.
[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 a 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 (possession of a restricted weapon, possession of cocaine for the
purpose of trafficking, forcible confinement, assault, possession of a
dangerous weapon, pointing a firearm and attempted murder). From an immigration
perspective, the legality of his custody is determined both by the illegality
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 an immigration status.
[10]
As for the
appellant’s contention that subsection 40(5) of the Act violates sections 7 and
12 of the Charter, I see no merit in that contention for the following reasons.
[11]
Section 7 of the
Charter has no application here. The proceedings before the CHRC and the
decision of the CHRC do not put in issue the lawfulness of the appellant’s
custody or detention in a penitentiary. The decision of the CHRC is a decision
to refuse to exercise a jurisdiction that it does not possess. I fail to see
how such a decision deprives the appellant of his right to life, liberty and
security of his person under section 7 of the Charter. Nor can I see how it can
be concluded that that decision amounts to a cruel and unusual treatment or
punishment under section 12.
[12]
This brings me to the
appellant’s challenge of subsections 40(5) and (6) of the Act under section 15
of the Charter. The appellant, who is self-represented, has not articulated in
a meaningful way his ground of challenge under section 15. I can only assume,
in view of the impugned subsections 40(5) and (6) of the Act, that he feels
discriminated on account of his lack of immigration status since this is the
reason why the CHRC decided that it did not have jurisdiction to hear his
complaint. No comparator group has been suggested by the appellant.
[13]
In my respectful
view, the short answer to the appellant’s challenge under section 15 resides in
the fact that the issue is raised on appeal for the first time. The judge
properly refused to entertain the Charter issues when they were submitted to
him in broad terms because no notice of constitutional questions had been
served in accordance with section 57 of the Federal Courts Act: on the
importance and necessity of serving such notice, see Bekker v. Canada,
2004 FCA 186; Gitxsan Treaty Society v. Hospital Employees Union et al.
(1999), 238 N.R. 73 (F.C.A.); Giagnocavo v. M.N.R. (1995), 95 D.T.C.
5618 (F.C.A.).
[14]
The notice of
constitutional questions was served on October 20, 2006, that is to say only
six weeks before the hearing of this appeal. As a result of this late filing,
there is no evidence on the record before this Court that addresses the
constitutional facts necessary for an adjudication of both the appellant’s
claim under section 15 and the respondent’s justification under section 1 of
the Charter. In Bekker, cited above, at paragraphs 12 and 13, this Court
reiterated the need for an evidential foundation in constitutional issues as
well as the undesirability of deciding these issues in a factual vacuum,
especially when, as in the present case, a complex, multi-factored and
contextual inquiry is mandated into whether the impugned legislation not only
creates differential treatment, but also is discriminatory in the
constitutional sense.
[15]
In these
circumstances, it would be unwise to embark upon a full-fledged inquiry into
and analysis of the appellant’s complaint under section 15 of the Charter. I
will add this, however, as a reflection on the appellant’s contention.
[16]
It is far from
obvious that the lack of immigration status of the appellant is an analogous
ground under section 15 because his lack of immigration status, not unlike that
of other foreigners who have no immigration status in Canada but who may seek and obtain one, is not immutable. In the
case of Corbière v. Canada (Minister of Indian and Northern
Affairs), [1999] 2
S.C.R. 203, at paragraph 13, the Supreme Court of Canada noted:
…the thrust of identification of analogous
grounds at the second stage of the Law analysis is to reveal grounds
based on characteristics that we cannot change or that the government has no
legitimate interest in expecting us to change to receive equal treatment under
the law. To put it another way, s. 15 targets the denial of equal treatment on
grounds that are actually immutable, like race, or constructively immutable,
like religion.
[17]
The Ontario Court of
Appeal has held that immigration status, at least insofar as it relates to
permanent resident status, is not a ground analogous to those listed in
subsection 15(1): see Irshad (Litigation guardian of) v. Ontario (Ministry
of Health) (2001), 55 O.R. (3d) 43; but see contra Re Jaballah, 2006
FC 115 where McKay J. of the Federal Court held that providing procedural
rights to permanent residents held under security certificates while denying
those rights to foreign nationals constituted discrimination within the meaning
of subsection 15(1) on the basis of immigration status.
[18]
In the Irshad
case, the Ontario Court of Appeal wrote at paragraphs 135-136:
A person’s status as a permanent or
non-permanent resident of a province is not a ground enumerated in s. 15 of the
Charter. Nor, in my view, is it an analogous ground…
A person’s status as a non-permanent resident
for the purposes of OHIP eligibility is not immutable. In the course of this
litigation, four of the five appellants who were non-permanent residents for
the purposes of OHIP eligibility became permanent residents by virtue of
changes in their immigration status. The residency status of the fifth
appellant, Raja, will also change if his immigration status changes, either
because he is reclassified or because the Minister grants him landed immigrant
status.
[19]
In addition, even
assuming without deciding it, that the lack of immigration status is a ground
that can be seen as immutable and therefore analogous to the prohibited grounds
of discrimination in subsection 15(1), I fail to see how the appellant
satisfies the third branch of the test laid out in Law v. Canada (Minister
of Employment and Immigration), [1999] 1 S.C.R. 497, at paragraph 63. He
has to show that the distinction between himself and others that he has not
defined “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”.
Here, the distinction between the appellant and others originates from his lack
of immigration status resulting from his illegal presence in Canada. Hence, the deportation order. It can hardly be said that
such distinction perpetuates or promotes the view that the appellant is less
worthy of recognition or value as a human being.
[20]
In the same vein, I
do not see how the decision of the CHRC taken pursuant to subsections 40(5) and
(6) of the Act that it had no jurisdiction to proceed with the appellant’s
complaint “has the effect of perpetuating and promoting the view that he is
less capable or worthy of recognition or value as a human being”.
Conclusion
[21]
The judge made no
error in finding that the CHRC was right to conclude that it had no
jurisdiction to hear the appellant’s complaint in view of subsections 40(5) and
(6) of the Act. Consequently, I would dismiss the appeal with costs.
“Gilles
Létourneau”
“I
agree
J.
Richard C.J.”
“I
agree
M.
Noël J.A.”
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