Date: 20110429
Dockets: A-408-09
A-501-09
Citation: 2011 FCA 146
CORAM: SHARLOW
J.A.
DAWSON J.A.
LAYDEN-STEVENSON
J.A.
Docket: A-408-09
BETWEEN:
NELL TOUSSAINT
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
CHARTER COMMITTEE ON POVERTY ISSUES
Intervener
Docket: A-501-09
BETWEEN:
BEN NDUNGU
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
SHARLOW J.A.
[1]
These
are appeals of two judgments of Justice Snider, reported as Toussaint v.
Canada (Minister of Citizenship and Immigration), 2009 FC 873, [2010] 3
F.C.R. 452, and Ndungu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1269. The appeals were heard
together based on serious questions of general importance certified by Justice
Snider pursuant to paragraph 74(d) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “IRPA”). Those questions,
which I have reworded slightly, are as follows:
(1) On a proper
interpretation of subsection 25(1) of the IRPA, is the Minister of
Citizenship and Immigration (the “Minister”) obliged to consider a request for
an exemption from the requirement in paragraph 10(1)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”),
to pay a fee for processing an application under subsection 25(1)?
(2) If not, then has the failure of the
Governor in Council to enact regulations permitting the waiver of fees for
foreign nationals living in poverty who wish to make an in-Canada application
for permanent resident status pursuant to subsection 25(1) of the IRPA
infringed:
(a) the rights of the
appellants under section 7 or 15 of the Canadian Charter of Rights and
Freedoms, or
(b) the rule of law or the
common law constitutional right of access to the courts?
[2]
Justice
Snider concluded that the answer to all of these questions is no, and on that
basis dismissed the judicial review applications. I agree with Justice Snider
on the second question. However, I respectfully disagree with her on the first
question, and for that reason I would allow these appeals.
A. Background
[3]
The
description of the background to these appeals is divided into three parts: (1)
Subsection 25(1) of the IRPA; (2) Provisions of the IRPA and the
Regulations relating to fees; and (3) Relevant facts and
litigation history.
1. Subsection 25(1) of the IRPA
[4]
A
foreign national may be granted the status of “permanent resident” under the IRPA.
“Foreign national” is defined as follows in subsection 2(1) of the IRPA:
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“foreign
national” means a person who is not a Canadian citizen or a permanent
resident, and includes a stateless person.
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« étranger » Personne
autre qu’un citoyen canadien ou un résident permanent; la présente définition
vise également les apatrides.
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[5]
The status of
permanent resident brings with it a number of important legal rights, including
the right to enter and remain in Canada, and essentially the same rights as a
citizen to work in Canada, and to receive social benefits, including
health care.
[6]
The
normal procedure by which a foreign national becomes a permanent resident
begins with an application submitted while the foreign national is outside Canada. However,
subsection 25(1) of the IRPA permits a person to submit an “in-Canada”
or “inland” application for permanent resident status with a request that the
Minister exercise the discretion to grant specified relief. Subsection 25(1)
read as follows at the time relevant to these appeals:
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25. (1) The Minister shall, upon
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, on the Minister’s own initiative
or on request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
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25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
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(Section 25 was amended by subsection 4(1)
of the Balanced Refugee Reform Act, S.C. 2010, c. 7, effective June 29,
2010. However, no one has argued that the amendments apply to the subsection
25(1) applications that are the subject of these appeals, which were made
before the amendments came into force. For that reason, I have not taken the
amendments into consideration.)
[7]
A
foreign national in Canada is eligible to submit a
subsection 25(1) application only if he or she is inadmissible or does not
meet the requirements of the IRPA. A foreign national may be inadmissible on
any of the grounds stipulated in sections 34 to 42 of the IRPA. It is
not necessary to summarize all of those provisions but I will note some examples.
[8]
Under
section 34, a foreign national is inadmissible on security grounds for, among
other things, engaging in any of the listed acts of espionage, subversion,
terrorism, or for being a danger to the security of Canada, unless the Minister
is satisfied that the presence of the foreign national in Canada would not be
detrimental to the national interest. Under section 35, a foreign national is
inadmissible on the ground of violating human or international rights in one of
the listed ways, again subject to a Ministerial exception. Under section 38, a
foreign national is inadmissible on health grounds if, among other things,
their health condition might reasonably be expected to cause excessive demand
on health or social services.
[9]
The
categories of admissibility that are most relevant to the statutory context for
these appeals are set out in section 39 (financial reasons) and section 41
(non-compliance with the IRPA). Those provisions read as follows:
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39. A foreign national is inadmissible for
financial reasons if they are or will be unable or unwilling to support
themself or any other person who is dependent on them, and have not satisfied
an officer that adequate arrangements for care and support, other than those
that involve social assistance, have been made.
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39. Emporte interdiction de territoire pour
motifs financiers l’incapacité de l’étranger ou son absence de volonté de
subvenir, tant actuellement que pour l’avenir, à ses propres besoins et à
ceux des personnes à sa charge, ainsi que son défaut de convaincre l’agent
que les dispositions nécessaires — autres que le recours à l’aide sociale —
ont été prises pour couvrir leurs besoins et les siens.
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|
...
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[…]
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41.
A person is inadmissible for failing to comply with this Act
(a)
in the case of a foreign national, through an act or omission which
contravenes, directly or indirectly, a provision of this Act; and
(b) in the case of a permanent resident, through
failing to comply with subsection 27(2) or section 28.
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41.
S’agissant de
l’étranger, emportent interdiction de territoire pour manquement à la
présente loi tout fait — acte ou omission — commis directement ou
indirectement en contravention avec la présente loi et, s’agissant du
résident permanent, le manquement à l’obligation de résidence et aux conditions
imposées.
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[10]
Subsection 25(1) on its face imposes
a legal obligation on the Minister to do certain things upon the request of a
foreign national in Canada who is inadmissible or who does not meet the
requirements of the IRPA. (It also permits the Minister to do those same
things on his own initiative, or upon the request of a foreign national outside
Canada, but those
elements of subsection 25(1) are not in play in these appeals).
[11]
As
I read subsection 25(1), the Minister’s statutory obligation generally is as
follows: (1) to examine the circumstances of the applicant; (2) to identify any
humanitarian and compassionate considerations relating to the applicant (taking
into account the best interests of a child directly affected), and any relevant
public policy considerations; and (3) to form an opinion as to whether the humanitarian
and compassionate considerations, or the public policy considerations, justify
granting the applicant permanent resident status or an exemption from any
applicable criteria or obligation of the IRPA.
2. Provisions of the IRPA and the Regulations relating to
fees
[12]
The
IRPA does not stipulate the procedural requirements for a subsection
25(1) application. The procedural requirements are established by regulations
enacted by the Governor in Council pursuant to subsection 5(1) of the IRPA,
which reads as follows:
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5. (1) Except as otherwise provided, the
Governor in Council may make any regulation that is referred to in this Act
or that prescribes any matter whose prescription is referred to in this Act.
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5.
(1) Le gouverneur en conseil peut, sous réserve des autres dispositions de la
présente loi, prendre les règlements d’application de la présente loi et
toute autre mesure d’ordre réglementaire qu’elle prévoit.
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Pursuant to subsection 5(2) of the IRPA,
regulations proposed to be made under certain provisions of the IRPA
must be tabled in Parliament and referred to a Parliamentary Committee before
they can be enacted by the Governor in Council. No such Parliamentary
reference was required for any regulations that are relevant to the issues in
these appeals.
[13]
Section
26 of the IRPA authorizes the making of regulations relating to
subsection 25(1), the provision in issue in this case. Section 26 read as
follows at the relevant time (my emphasis):
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26. The regulations may provide for any
matter relating to the application of sections 18 to 25, and may include
provisions respecting
(a)
entering, remaining in and re-entering Canada;
(b)
permanent resident status or temporary resident status, including
acquisition of that status;
(c)
the circumstances in which all or part of the considerations referred to in
section 24 may be taken into account;
(d)
conditions that may or must be imposed, varied or cancelled, individually or
by class, on permanent residents and foreign nationals; and
(e) deposits or guarantees of the performance of
obligations under this Act that are to be given to the Minister.
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26. Les règlements régissent l’application des articles 18 à
25 et portent notamment sur :
a) l’entrée, la faculté de
rentrer et le séjour;
b) le statut de résident
permanent ou temporaire, et notamment l’acquisition du statut;
c) les cas dans lesquels il peut
être tenu compte de tout ou partie des circonstances visées à l’article 24;
d) les conditions qui peuvent ou
doivent être, quant aux résidents permanents et aux étrangers, imposées,
modifiées ou levées, individuellement ou par catégorie;
e) les garanties à fournir au
ministre pour l’exécution de la présente loi.
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[14]
Paragraph
26(b) of the IRPA permits regulations to be made regarding
“permanent resident status”, including “the acquisition of that status”. That
would include regulations stipulating the procedural requirements for a
subsection 25(1) application.
[15]
The
procedural regulations in play in this case are subsection 10(1) and section 66
of the Regulations. Subsection 10(1) states the general procedural
requirements for all applications under the IRPA. Section 66 stipulates
how a subsection 25(1) application is to be made. Those provisions read as
follows (my emphasis):
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10.
(1) Subject to paragraphs
28(b) to (d), an application under these Regulations shall
(a) be
made in writing using the form provided by the Department, if any;
(b) be
signed by the applicant;
(c)
include all information and documents required by these Regulations, as well
as any other evidence required by the Act;
(d) be
accompanied by evidence of payment of the applicable fee, if any, set out in
these Regulations; and
(e) if
there is an accompanying spouse or common-law partner, identify who is the
principal applicant and who is the accompanying spouse or common-law partner.
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10. (1) Sous réserve des alinéas 28b)
à d), toute demande au titre du présent règlement :
a) est faite par écrit sur le
formulaire fourni par le ministère, le cas échéant;
b) est signée par le
demandeur;
c) comporte les
renseignements et documents exigés par le présent règlement et est
accompagnée des autres pièces justificatives exigées par la Loi;
d) est accompagnée d’un
récépissé de paiement des droits applicables prévus par le présent règlement;
e) dans le cas où le
demandeur est accompagné d’un époux ou d’un conjoint de fait, indique celui
d’entre eux qui agit à titre de demandeur principal et celui qui agit à titre
d’époux ou de conjoint de fait accompagnant le demandeur principal.
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…
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[…]
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66. A request made by a foreign national
under subsection 25(1) of the Act must be made as an application in writing
accompanied by an application to remain in Canada as a permanent resident or,
in the case of a foreign national outside Canada,
an application for a permanent resident visa.
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66. La demande faite par un étranger en
vertu du paragraphe 25(1) de la Loi doit être faite par écrit et accompagnée
d’une demande de séjour à titre de résident permanent ou, dans le cas de
l’étranger qui se trouve hors du Canada, d’une demande de visa de résident
permanent.
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[16]
The
IRPA, as it read in 2008, mentions fees only in sections 89, 148 and
150. It is undisputed in these appeals that section 89 of the IRPA is
the provision that authorized the enactment of section 307 of the Regulations,
the provision that stipulates the fee in issue in these appeals. Sections 148 and
150 of the IRPA (found in Part 3, “Enforcement”) relate to the
obligations of operators of vehicles or transportation facilities bringing
persons into Canada. Those
provisions shed no light on the issues in these appeals. Section 89 reads as
follows:
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89.
The regulations
may govern fees for services provided in the administration of this Act, and
cases in which fees may be waived by the Minister or otherwise, individually
or by class.
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89. Les règlements peuvent prévoir
les frais pour les services offerts dans la mise en oeuvre de la présente
loi, ainsi que les cas de dispense, individuellement ou par catégorie, de
paiement de ces frais.
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[17]
No
regulation has been enacted governing the waiver of fees by the Minister or
otherwise.
[18]
Fees
are dealt with in Part 19 of the Regulations (sections 294-315), which
consists of five divisions: Division 1 (interpretation), Division 2 (fees for
applications for visas and permits, including work permits and study permits),
Division 3 (fees for applications to remain in Canada as a permanent resident),
Division 4 (right of permanent residence) and Division 5 (fees for other applications
and services). Within each division, fees are imposed in numerous categories,
each with its own scheme that in some cases includes exceptions and remissions.
[19]
The
fee in issue in this case is the fee stipulated by section 307 of the Regulations,
which is found in Division 5 (fees for other applications and services) and
reads in relevant part as follows:
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307.
The following fees are
payable for processing an application made in accordance with section 66 if
no fees are payable in respect of the same applicant for processing an
application to remain in Canada as a permanent resident or an application for
a permanent resident visa:
(a) in
the case of a principal applicant, $550 ….
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307. Les frais ci-après sont à payer pour
l’examen de la demande faite aux termes de l’article 66 si aucuns frais ne
sont par ailleurs à payer à l’égard du même demandeur pour l’examen d’une
demande de séjour au Canada à titre de résident permanent ou d’une demande de
visa de résident permanent :
a) dans le cas du demandeur principal,
550 $ [....]
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(The reference to section 66 is a reference
to section 66 of the Regulations, which is quoted above.)
3. Relevant facts and litigation history
[20]
The
facts relating to Ms. Toussaint and Mr. Ndungu are similar insofar as they are
relevant to these appeals. Ms. Toussaint and Mr. Ndungu are foreign nationals. In 2008 they
were living in Canada without permanent resident status and without a
visa entitling them to remain in Canada. They had no legal
right to remain in Canada and were liable to be removed. If they were to
leave Canada, they would have no legal right to return to Canada without
obtaining either a visa or the status of permanent resident.
[21]
Ms.
Toussaint and Mr. Ndungu both wish to become permanent residents. Each submitted a subsection
25(1) application in 2008. The Minister does not dispute that they were
eligible to do so, and for the purposes of these appeals it is not
necessary to identify precisely why they were eligible.
[22]
Paragraph 10(1)(d)
of the Regulations required Ms. Toussaint and Mr. Ndungu to include with
their subsection 25(1) applications proof that they had paid the $550 fee
stipulated by section 307 of the Regulations. Ms. Toussaint and Mr.
Ndungu did not comply with that requirement. They both claim that the payment
of the $550 fee would be an undue financial hardship for them. When they
submitted their subsection 25(1) applications, they did not include proof of
payment of the fee. Instead, they submitted evidence of their poverty and a
request that the fee be waived.
[23]
For
the purpose of these appeals, I have assumed that the claims of financial
hardship asserted by Ms. Toussaint and Mr. Ndungu are such that the Minister
could reasonably conclude that the fee should be waived on humanitarian and
compassionate grounds. I do not suggest that this would have been the only
decision reasonably open to the Minister.
[24]
Ms.
Toussaint and Mr. Ndungu each received a letter stating that their subsection
25(1) applications would not be considered until the $550 fee was paid. Ms.
Toussaint’s letter is dated January 12, 2009, and Mr. Ndungu’s letter is dated
February 10, 2009. The explanations are identical and read as follows:
Paragraph 10(1)(d) of the Immigration
and Refugee Protection Regulations requires all applicants to include
evidence of payment of the applicable fee. Your request for an exemption for
the fee is contrary to this legislative requirement. If you wish to apply for
permanent residence in Canada your application must be
accompanied by the required fee.
This explanation reflects the
interpretation of subsection 25(1) of the IRPA and the applicable Regulations
asserted by the Minister in the Federal Court and in this Court.
[25]
Both
Ms. Toussaint and Mr. Ndungu sought and obtained leave to bring an application
in the Federal Court for judicial review of the Minister’s decision to refuse
to consider their subsection 25(1) applications. Justice Snider heard Ms.
Toussaint’s application for judicial review first, dismissing it and certifying
the questions referred to above. Justice Snider later heard Mr. Ndungu’s
application, with the same result.
[26]
Both
judicial review applications challenged the Minister’s interpretation of
subsection 25(1) of the IRPA, and raised a number of constitutional
challenges in the event the Minister’s interpretation was found to be correct.
[27]
On
the question of statutory interpretation, Justice Snider acknowledged that the
interpretation of subsection 25(1) proposed by Ms. Toussaint and Mr. Ndungu
reflects a valid literal interpretation of subsection 25(1), but she accepted
the Minister’s interpretation because, as she explained in paragraphs 23 to 32
of her reasons in Toussaint, she considered the Minister’s
interpretation to be more consistent with the object and purpose of the
statutory scheme that includes subsection 25(1).
[28]
Justice
Snider rejected the constitutional arguments of Ms. Toussaint and Mr. Ndungu,
concluding that there is no constitutional principle that compels the Governor
in Council to enact regulations governing the waiver of fees payable under the IRPA.
B. Standard
of Review
[29]
This
case has been argued throughout on the basis that the Minister is owed no
deference on the question of statutory interpretation or the constitutional
issues raised in these appeals. I agree, and have applied the standard of
correctness.
C. Principles of statutory interpretation
[30]
As the main issue
in these appeals requires a resolution of a debate about the interpretation of
subsection 25(1) of the IRPA, the principles of statutory interpretation
must be considered. Justice Snider summarized the relevant principles in paragraphs 16 to
20 of her reasons in Toussaint. I agree with her summary and repeat it
here:
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[16] Since the first issue before me is one of statutory
interpretation, it is useful to begin with an overview of the principles
related to such matters. On a number of occasions, the Supreme Court of
Canada has given guidance on how to approach a problem of statutory
interpretation. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1
S.C.R. 27 at paragraph 21, Mr. Justice Iacobucci, speaking for the unanimous
Court, endorsed the statement of Elmer Driedger in Driedger on the
Construction of Statutes, 2nd ed. (Toronto: Butterworths Canada
Ltd., 1983) that:
Today there is only
one principle or approach, namely, the words of an Act are to be read in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament.
[17] Accordingly, the task of the Court in interpreting
legislation cannot be restricted to analysing the plain meaning of the
provision in question. Further, while the statutory words must be given a
"fair, large and liberal construction and interpretation as best ensures
the attainment of its objectives” (Interpretation Act, R.S.C. 1985, c.
I-21, s. 12), attention must be directed to the scheme and objective of the
statute, the intention of the legislature, and the context of the words in
issue (Rizzo, above, at para. 23). Regardless of how clear and unambiguous
the words of a provision may be, further analysis must be carried out.
Indeed, a failure to determine the intention of the legislature in enacting a
particular provision has been found to be an error (Rizzo, above, at
paras. 23, 31). It follows that, where there are conflicting but not
unreasonable interpretations available, the contextual framework of the
legislation becomes even more important.
[18] In short, my task cannot be limited to interpreting
the individual words or phrases used in s. 25; rather, I must have regard to
the context in which the words are placed, the objects of IRPA and the
intention of Parliament.
[19] In considering the context of IRPA, the
nature or architecture of the statutory scheme is important. In De Guzman
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436,
[2006] 3 F.C.R. 655 at paragraph 23, the Court of Appeal described IRPA as
"framework legislation": That is to say, the Act contains the core
principles and policies of the statutory scheme and, in view of the
complexity and breadth of the subject-matter, is relatively concise. The
creation of secondary policies and principles, the implementation of core
policy and principles, including exemptions, and the elaboration of crucial
operational detail, are left to regulations, which can be amended
comparatively quickly in response to new problems and other developments.
Framework legislation thus contemplates broad delegations of legislative
power.
[20] In De Guzman (at paragraph 26), the Court
also commented that if there is a conflict between the express language of an
enabling clause and a regulation purportedly made under it, the regulation
may be found to be invalid. Otherwise, courts approach with great caution the
review of regulations promulgated by the Governor (or Lieutenant-Governor) in
Council.
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D. Interpretation of
subsection 25(1)
1. Introduction
[31]
The
question of statutory interpretation raised in these appeals is this: Does
subsection 25(1) of the IRPA give the Minister the authority to grant a
request made by a foreign national in Canada to waive the requirement in
paragraph 10(1)(d) of the Regulations to pay the fee stipulated
by section 307 of the Regulations for a subsection 25(1) application? In
my view, the answer is yes, for the reasons explained below. It follows that
the Minister erred in law when he rejected the subsection 25(1) applications of
Ms. Toussaint and Mr. Ndungu on the basis that subsection 25(1) did not give
him the authority to waive the fee.
[32]
For
ease of reference, subsection 25(1) is reproduced here (my emphasis):
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25. (1) The Minister shall, upon
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, on the Minister’s own initiative
or on request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
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25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
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[33]
I
summarize the Minister’s argument as follows. The phrase “any applicable
criteria or obligation of this Act” in subsection 25(1) of the IRPA
refers only to the grounds of inadmissibility for permanent residence set out
in sections 34 to 42 of the IRPA, and the various obligations under the Regulations
to provide specified information and official documents. In contrast, the
requirement under paragraph 10(1)(d) of the Regulations to pay
the $550 fee is a precondition to the making of a valid subsection 25(1)
application. Until that fee is paid, there is no subsection 25(1) application,
and therefore there is no subsection 25(1) request for the Minister to
consider. It follows that the phrase “applicable criteria or obligation of this
Act” cannot be interpreted to include the authority to waive the fee.
[34]
Ms.
Toussaint and Mr. Ndungu propose an entirely different interpretation. I
summarize their argument as follows. Under subsection 25(1) of the IRPA,
the Minister is given the statutory authority to grant a foreign national in Canada an exemption
from “any applicable criteria or obligation of this Act”. Paragraph 10(1)(d)
imposes on every subsection 25(1) applicant the obligation to pay the fee
stipulated in section 307 of the Regulations. By virtue of subsection
2(2) of the IRPA, the obligation to pay that fee is an obligation “of
this Act”, and therefore it is an obligation that the Minister may waive
pursuant to subsection 25(1). Subsection 2(2) of the IRPA reads as
follows:
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2. (2)
Unless otherwise indicated, references in this Act to “this Act” include
regulations made under it.
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2. (2)
Sauf disposition contraire de la présente loi, toute mention de celle-ci vaut
également mention des règlements pris sous son régime.
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2. Analysis of subsection 25(1)
[35]
I
agree with Justice Snider (at paragraph 21 of her reasons in Toussaint)
that the interpretation of subsection 25(1) of the IRPA proposed by Ms.
Toussaint and Mr. Ndungu is consistent with its language, read literally in its
ordinary and grammatical sense. That conclusion accords with the broad language
used to describe what the Minister may waive – “any applicable criteria or
obligation of this Act” – and the correspondingly broad basis for such a waiver
– humanitarian and compassionate considerations and public policy
considerations.
[36]
I
also agree with Justice Snider that this does not necessarily mean that the
literal interpretation of subsection 25(1) is correct. If the language of
subsection 25(1) can reasonably bear another meaning that accords better with
the context and objectives of the statutory scheme, then that other meaning
should be accepted. Therefore, it is necessary to consider the elements of the
statutory scheme relating to applications for permanent residence and the
related fees, and the place of those elements within the IRPA.
[37]
Based
on the submissions of the parties, I have concluded that the following
contextual factors should be considered in interpreting subsection 25(1): (a)
the general principle that immigration is a privilege, not a right; (b) the
statutory objectives of the IRPA as stated in section 3; (c) whether the
existence of section 89 of the IRPA implies that the question of fee
waivers was intended to be solely a matter for regulation by the Governor in
Council; (d) the fact that the criteria used to assess a subsection 25(1)
application include financial self sufficiency in Canada; and (e) whether
requiring fee waivers to be considered with a subsection 25(1) application is
absurd because it would be unduly cumbersome. I will discuss each of these in
turn below.
(a) Immigration as a
privilege
[38]
The
Minister argues that subsection 25(1) requires the Minister to consider a
subsection 25(1) application upon request, but does not require the Minister to
enable that request by waiving the fee. This argument, according to the
Minister, is consistent with the fundamental principle of Canadian immigration
law that immigration is a privilege (see, for example, Canada (Minister of
Citizenship and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at
paragraph 24).
[39]
In
my view, the principle that immigration is a privilege means that a subsection
25(1) applicant has no legal right to a favourable decision by the Minister on
any request for an exemption. However, that principle says nothing about the
scope of the Minister’s discretion under subsection 25(1), or more
specifically, whether it should be interpreted narrowly as the Minister
contends, or broadly as contended by Ms. Toussaint and Mr. Ndungu.
(b) The statutory
objectives of the IRPA as stated in section 3
[40]
It
is often the case that the resolution of a debate on the interpretation of a
statute requires consideration of the objectives of the statute. In this case,
the objectives of
the IRPA are set out in section 3 of the IRPA. Subsection 3(1)
refers to immigration, subsection 3(2) refers to refugees, and subsection 3(3)
refers to interpretation and application.
[41]
The
Minister cites paragraphs 3(1)(a), (c) and (e) in support
of his interpretation of subsection 25(1). Those provisions read as follows:
|
3. (1) The objectives of this Act
with respect to immigration are
|
3. (1) En matière d’immigration,
la présente loi a pour objet :
|
|
(a)
to permit Canada to pursue the maximum social,
cultural and economic benefits of immigration;
|
a) de permettre au Canada de
retirer de l’immigration le maximum d’avantages sociaux, culturels et
économiques;
|
|
…
|
[…]
|
|
(c)
to support the development of a strong and prosperous Canadian economy, in
which the benefits of immigration are shared across all regions of Canada;
|
c) de favoriser le développement
économique et la prospérité du Canada et de faire en sorte que toutes les
régions puissent bénéficier des avantages économiques découlant de
l’immigration;
|
|
…
|
[…]
|
|
(e)
to promote the successful integration of permanent residents into Canada, while recognizing that integration
involves mutual obligations for new immigrants and Canadian society;
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e) de promouvoir l’intégration des
résidents permanents au Canada, compte tenu du fait que cette intégration
suppose des obligations pour les nouveaux arrivants et pour la société
canadienne;
|
[42]
The
Minister argues that interpreting subsection 25(1) to permit a discretionary
waiver of fees would be inconsistent with the IRPA provisions of
pursuing maximum economic benefits of immigration, supporting the development
of a strong and prosperous economy, and promoting the goal of the successful
integration of permanent residents to Canada. I see nothing in any
of these provisions that is inconsistent with a statutory provision that
permits the Minister to waive the fee for a subsection 25(1) application. On
the contrary, it may well be more consistent with these objectives to give the
Minister the authority to facilitate a process that might lead to a foreign
national being granted the status of a permanent resident. A foreign national
in Canada who does not
have the status of permanent resident does not have an unqualified right to
work to achieve self-sufficiency. If such a person has a potentially
meritorious claim for a discretionary grant of permanent residence under
subsection 25(1), there is no obvious policy objection to a process that could
facilitate his subsection 25(1) application by a fee waiver.
[43]
I
do not read anything in subsection 3(1) as referring directly or indirectly to
fees. Such fees are imposed primarily as a cost recovery device, to improve the
efficiency of the government department charged with the administration of the IRPA.
Administrative efficiency is undoubtedly important in all government
endeavours, but I am unable to read section 3 of the IRPA as including
administrative efficiency as one of the core statutory objectives of
immigration. In my view, the stated objectives of the IRPA are not
liable to be harmed by adopting the interpretation of subsection 25(1) proposed
by Ms. Toussaint and Mr. Ndungu.
[44]
One
argument for Mr. Ndungu was based in part on paragraphs 3(3)(d) and (f)
of the IRPA, which read as follows:
|
3. (3) This Act is to be construed and
applied in a manner that
|
3. (3) L’interprétation et la mise en
oeuvre de la présente loi doivent avoir pour effet :
|
|
…
(d)
ensures that decisions taken under this Act are consistent with the Canadian
Charter of Rights and Freedoms, including its principles of equality and
freedom from discrimination and of the equality of English and French as the
official languages of Canada;
|
[…]
d) d’assurer que les décisions
prises en vertu de la présente loi sont conformes à la Charte canadienne
des droits et libertés, notamment en ce qui touche les principes, d’une
part, d’égalité et de protection contre la discrimination et, d’autre part,
d’égalité du français et de l’anglais à titre de langues officielles du
Canada;
|
|
…
(f)
complies with international human rights instruments to which Canada is signatory.
|
[…]
f) de se conformer aux instruments
internationaux portant sur les droits de l’homme dont le Canada est
signataire.
|
[45]
The
argument, in summary, is that to interpret paragraph 25(1) in a way that
precludes the Minister from waiving the fee would be inconsistent with
paragraph 3(3)(d) or (f) of the IRPA, especially where the
best interests of a child are at stake. This presumes that the fee imposed on a
subsection 25(1) applicant for permanent residence engages the rights of the
applicant under the Charter and certain international agreements to
which Canada is a
signatory (relating to the interests of children). The same presumption
underlies the argument for Mr. Ndungu on the second certified question and in
that context was correctly rejected by Justice Snider. In my view, it bears no
greater weight in the context of statutory interpretation.
(c) Role of section 89
of the IRPA
[46]
The
Minister cites section 89 of the IPRA in support of his interpretation
of subsection 25(1). Section 89 is quoted above and is repeated here for ease
of reference:
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89.
The regulations
may govern fees for services provided in the administration of this Act, and
cases in which fees may be waived by the Minister or otherwise, individually
or by class.
|
89.
Les règlements peuvent prévoir les frais pour les services offerts dans la
mise en oeuvre de la présente loi, ainsi que les cas de dispense,
individuellement ou par catégorie, de paiement de ces frais.
|
As indicated above, the Governor in Council has
enacted no regulations dealing with discretionary fee waivers by the Minister.
[47]
The
Minister argues that the existence of section 89 is an indication that Parliament
intended the Minister to have no discretion to waive fees except as permitted
by a regulation enacted by the Governor in Council. According to the Minister,
to find a fee waiving authority within subsection 25(1) would suggest that
Parliament has provided for competing authorities. I see no reason to read that
much into section 89. In
my view, section 89 and subsection 25(1) are capable of standing together no
matter which interpretation of subsection 25(1) is adopted.
[48]
I
see no reason in principle why Parliament would not see fit to authorize the
Minister to waive the fee for a subsection 25(1) application on humanitarian
and compassionate grounds or public policy grounds, necessarily on a case by
case basis, while at the same time authorizing the Governor in Council to enact
regulations governing when a fee may be waived “by the Minister or
otherwise, individually or by class.” The scope of the regulation making
authority in section 89 is plenary – it permits regulations to be made for the
waiver of any of the dozens of fees imposed in Part 19 of the Regulations,
most of which have nothing to do with subsection 25(1). In my view, there is
ample scope for the enactment of regulations relating to fee waivers without
encroaching on the authority given to the Minister under subsection 25(1).
(d) Statutory
requirement of financial stability and independence
[49]
The
Minister argues that waiving the fee payable by a subsection 25(1) applicant
who is not financially self sufficient and is not capable of attaining that
status would be inconsistent with the financial admissibility criteria in
section 39 of the IRPA. That provision is quoted above and is repeated
here for ease of reference:
|
39. A
foreign national is inadmissible for financial reasons if they are or will be
unable or unwilling to support themself or any other person who is dependent
on them, and have not satisfied an officer that adequate arrangements for
care and support, other than those that involve social assistance, have been
made.
|
39. Emporte interdiction de territoire pour
motifs financiers l’incapacité de l’étranger ou son absence de volonté de
subvenir, tant actuellement que pour l’avenir, à ses propres besoins et à
ceux des personnes à sa charge, ainsi que son défaut de convaincre l’agent
que les dispositions nécessaires — autres que le recours à l’aide sociale —
ont été prises pour couvrir leurs besoins et les siens.
|
[50]
I do
not accept the Minister’s argument on this point. The result of the Minister’s
interpretation is this. It is possible as a matter of law for a person with no
financial resources to be granted permanent resident status if the Minister is
of the opinion that such a decision is warranted by humanitarian and
compassionate considerations or public policy considerations. However, because
that same person does not have $550, the Minister cannot permit the opening of
the door that would engage the Minister’s statutory authority to assess those
considerations. In my view, that state of affairs makes no sense. It would be
more consistent with the objectives of the IRPA to interpret subsection
25(1) in a way that allows the Minister to waive that fee, than to interpret it
in a way that bars any such relief.
(e) Administrative
considerations
[51]
The
Minister suggests that it would be unduly cumbersome for the Minister to have
to deal with a fee waiver (which necessarily would deal with many of the same
considerations as a request for an exemption from section 39 – financial
inadmissibility) in the case of an application based on an entirely unrelated
ground of admissibility – for example, inadmissibility on health grounds. The
Minister asserts that this would entail “enormous resource implications”, such
that it is unreasonable to conclude that Parliament intended such a result.
[52]
It
is difficult, if not impossible, to assess the merits of the allegation of
increased costs because the Minister has offered no evidence to support it.
However, drawing what inferences I can from the common general knowledge of
administrative matters, it seems to me that dealing with fee waivers might
prove to be relatively simple compared, for example, to assessing claims for
exemptions from inadmissibility provisions. There is no obvious reason why the
Minister could not consider a subsection 25(1) application on its merits before
considering any request for a fee waiver. The question of the fee waiver would
then have to be considered only if the principal request for an exemption is
successful.
[53]
Even
if I were to assume that interpreting subsection 25(1) as proposed by Ms.
Toussaint and Mr. Ndungu would entail more work on the part of the Minister
(and Ministerial delegates) than is now the case, so that the cost of
administering subsection 25(1) would increase, I am not persuaded on balance
that an increased administration burden, in and by itself, is a sound reason
for adopting the Minister’s interpretation of that provision, particularly in
the absence of any evidence on the point.
[54]
Justice
Snider in her reasons raises a concern that if subsection 25(1) is interpreted
as proposed by Ms. Toussaint and Mr. Ndungu, the Minister would be inundated
with requests for fee waivers for any and all fees imposed by the Regulations.
In my view, the record discloses no foundation for that concern. Indeed, it
does not form any part of the submissions of the Minister in these appeals.
3. Conclusion on statutory interpretation
[55]
In
my view, there is nothing in the scheme of the IRPA or the statutory
context to compel the conclusion that the obligation under paragraph 10(1)(d)
of the Regulations to pay a fee for a subsection 25(1) application is
not within the scope of the phrase “any applicable criteria or obligation of
this Act” in subsection 25(1) of the IRPA. I conclude that on a
proper interpretation of subsection 25(1) of the IRPA, the Minister is
obliged to consider a request for an exemption from the requirement in section
307 of the Regulations to pay a fee for processing an application under
subsection 25(1), and I would answer the first certified question accordingly.
E. The constitutional
questions
[56]
My
answer to the first certified question is a sufficient basis for allowing this
appeal, and rendering the second question moot. I have nevertheless considered
the second question and the constitutional issues to which they relate because they were dealt
with thoroughly by Justice Snider, and were the subject of full argument in
these appeals.
[57]
As
indicated above, I agree with the conclusions of Justice Snider on the
constitutional issues that are the subject of the second certified question, as
summarized below. Because I agree substantially with her analysis as set out in
paragraphs 34 to 117 of her reasons, I do not consider it necessary to repeat
it.
[58]
Section
7 of the Charter. The rights of Ms. Toussaint and Mr. Ndungu
under section 7 of the Charter are not engaged by the failure of the
Minister to consider their requests for a fee waiver. That is so for two
reasons. First, their removal from Canada prior to consideration
of the humanitarian and compassionate grounds raised in their subsection 25(1)
applications does not deprive them of their right to life, liberty or security
of the person. Second, they have not been deprived of any rights without the
application of the principles of fundamental justice.
[59]
Subsection
15(1) of the Charter. If there were no provision in the IRPA
or the Regulations for the waiver of the fee for a subsection 25(1)
application by a foreign national living in poverty in Canada, that would not
constitute discrimination against Ms. Toussaint or Mr. Ndungu contrary to
subsection 15(1) of the Charter on the ground of “poverty” or “being a
person in receipt of social assistance”. That is so for several reasons.
(1) The subsection
15(1) claim fails on the facts. There is no evidence that foreign nationals
living in poverty in Canada suffer disproportionate hardship that can
be attributed to the absence of a provision for a fee waiver
(2) The absence of a
provision for a fee waiver does not affect access to a process for claiming a
legal right. It affects only access to a process for requesting a discretionary
and exceptional benefit.
(3)
“Poverty” or “being in need of social assistance” are not analogous grounds
for purposes of subsection 15(1). A person’s financial condition is not an
immutable personal characteristic. People who are poor or who are in need of
social assistance are not a discrete and insular group defined by a common or
shared personal characteristic. The absence of a provision for a fee waiver
does not create a disadvantage by perpetuating prejudice or stereotyping.
[60]
Access
to the courts and the rule of law. The absence of a provision for the waiver
of fees is not contrary to the common law constitutional right of access to the
courts or to the rule of law. Access to the Minister under subsection 25(1) of
the IRPA is not the same as, or analogous to, access to the courts
because the Minister’s authority under subsection 25(1) is limited to providing
an exceptional discretionary benefit. In the context of the immigration
provisions of the IRPA, the rule of law cannot be used to create a fee
waiver where none exists in the legislation.
F. Conclusion
[61]
I
would allow both appeals, set aside the judgments of the Federal Court, allow
both applications for judicial review, and refer both matters back to the
Minister for consideration of the requests of the appellants for a waiver of the
fees payable in respect of their subsection 25(1) applications. I would answer
the certified questions as follows:
1.
On a
proper interpretation of subsection 25(1) of the IRPA, is the Minister
obliged to consider a request for an exemption from the requirement in
paragraph 10(1)(d) of the Regulations to pay a fee for processing
an application under subsection 25(1)?
Answer: Yes.
2. Has the failure of the
Governor in Council to enact regulations permitting the waiver of fees for
foreign nationals living in poverty who wish to make an in-Canada application
for permanent resident status pursuant to subsection 25(1) of the IRPA
infringed:
i. the rights of the appellants under section 7 or 15 of the Charter,
or
ii. the rule of law or the
common law constitutional right of access to the courts?
Answer: No.
“K.
Sharlow”
“I
agree
Eleanor R. Dawson J.A.”
“I
agree
Carolyn Layden-Stevenson J.A.”
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