Date: 20081103
Docket: A-534-07
Citation: 2008 FCA 341
CORAM: DÉCARY
J.A.
SEXTON
J.A.
SHARLOW J.A.
BETWEEN:
PAUL RICHARDS
Appellant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This is an
appeal of the judgment of Justice Teitelbaum (2007 FC 1100) dismissing the
application of Mr. Paul Richards for judicial review of a decision of the
Canadian Human Rights Commission dismissing his complaint against the Canadian
Border Services Agency. The issue in this appeal is whether the decision of the Commission adopting the
recommendation of an investigator should have been quashed on the basis of a
statement in the investigator’s report indicating that he may have
misapprehended a principle of human rights law. In my view, given the
particular circumstances of this case, the answer is no.
Statutory framework
[2]
This
appeal involves a complaint of a discriminatory practice, defined as follows in
section 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6:
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5. It is a
discriminatory practice in the provision of goods, services, facilities or
accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good,
service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any
individual,
on
a prohibited ground of discrimination.
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5. Constitue un acte discriminatoire, s’il est fondé
sur un motif de distinction illicite, le fait, pour le fournisseur de biens,
de services, d’installations ou de moyens d’hébergement destinés au public :
a) d’en priver un individu;
b) de le
défavoriser à l’occasion de leur fourniture.
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[3]
The
prohibited grounds of discrimination are set out in subsection 3(1) of the Act,
which reads as follows:
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3.
(1) For all purposes of this Act, the
prohibited grounds of discrimination are race, national or ethnic origin,
colour, religion, age, sex, sexual orientation, marital status, family
status, disability and conviction for which a pardon has been granted.
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3.
(1)
Pour l’application de la présente loi, les motifs de distinction illicite
sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la
couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état
matrimonial, la situation de famille, l’état de personne graciée ou la
déficience.
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[4]
The
Canadian Human Rights Commission is established by section 26 of the Act. It
has a number of duties and functions, one of which is to receive complaints of
discrimination submitted under section 40 of the Act. The Act contains some
provisions that permit a complaint to be dismissed summarily, but none of those
provisions apply in this case. The complaint was referred to an investigator
pursuant to section 43.
[5]
The
investigator conducts an investigation and prepares a report to the Commission
that summarizes the result of the investigation and recommends whether the Commission
should dismiss the complaint or refer it to the Canadian Human Rights Tribunal for
an inquiry. Generally, the investigator’s report is provided to the complainant
and the party against whom the complaint is made. They are entitled to make
submissions, and those submissions are considered by the Commission with the
investigator’s report.
[6]
Based
on the investigator’s report and any submissions made by the parties, the
Commission decides whether to dismiss the complaint or refer it to the Tribunal
for an inquiry. That decision is made pursuant to subsection 44(3) of the Act, which
reads in relevant part as follows:
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44. (3) On receipt
of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to
institute an inquiry under section 49 into the complaint to which the report
relates if the Commission is satisfied
(i)
that, having regard to all the circumstances of the complaint, an inquiry
into the complaint is warranted, […] or
(b) shall dismiss the complaint to which the report
relates if it is satisfied
(i) that, having
regard to all the circumstances of the complaint, an inquiry into the
complaint is not warranted […].
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44. (3) Sur
réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du Tribunal de
désigner, en application de l’article 49, un membre pour instruire la plainte
visée par le rapport, si elle est convaincue :
(i) d’une part, que, compte tenu des circonstances
relatives à la plainte, l’examen de celle-ci est justifié […]
b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances
relatives à la plainte, l’examen de celle-ci n’est pas justifié […].
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[7]
In
making a decision pursuant to subsection 44(3) of the Act, the function of the
Commission is analogous to that of a judge at a preliminary inquiry in the
sense that the Commission does not adjudicate a complaint, but determines on
the basis of the investigator’s report, and any submissions by the complainant
and other parties, whether there is a reasonable basis in the evidence for
proceeding to an inquiry (Cooper v. Canada (Human Rights
Commission), [1996] 3 S.C.R. 854, at paragraph 53; Syndicat des
employés de production du Québec et de L'Acadie v. Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R. 879, at page 899).
[8]
The
work of the investigator is treated as part of the work of the Commission. If the
Commission accepts the recommendation of an investigator without giving
separate reasons, as in this case, it is presumed to have adopted the reasons
of the investigator (Sketchley
v. Canada (Attorney General), [2006] 3 F.C.R. 392 at paragraph 37; Syndicat des employés de
production du Québec et de l’Acadie, cited above, at pages 902 and 903).
[9]
Generally,
the Commission is entitled to deference in relation to the scope and depth of
the investigation upon which it relies in deciding whether a complaint should
be dismissed or referred to the Tribunal for an inquiry. However, as a matter
of procedural fairness, a decision of the Commission may
be quashed if it is based on an investigation that is not neutral or not
thorough. (Slattery v. Canada (Human Rights Commission) (T.D.),
[1994] 2 F.C. 574 at paragraph 56, affirmed (1996), 205 N.R. 383 (F.C.A.)).
[10]
There is very little jurisprudence dealing with the neutrality of
an investigation. However, the cases have established that an investigation is neutral if it is undertaken by an
investigator with an open mind and no preconceptions as to the merits of the
complaint or any potential defence to the complaint (see Canadian Broadcasting Corporation
(CBC) v. Canada (Canadian Human Rights Commission) (1993), 71 F.T.R. 214 (T.D.) at paragraphs 45
to 47).
[11]
The cases dealing with the
thoroughness of an investigation have established that an investigation is not thorough
if the investigator fails to investigate obviously crucial evidence or to address
crucial submissions by one of the parties (see, for example, Sketchley (cited above), Tahmourpour v. Canada (Solicitor
General), 2005 FCA 113, and Public Service Alliance of Canada v. Canada
(Treasury Board) (F.C.), [2006] 3 F.C.R. 283, at paragraph 42). It is an
open question whether there are any other grounds upon which the thoroughness
of an investigation may be challenged.
Facts
[12]
Mr.
Richards, an employee of the Ontario Human Rights Commission, is an African
Canadian man, Jamaican born, who wears his hair in dreadlocks. On July 8, 2003,
Mr. Richards was returning from a vacation in Jamaica. He flew into Lester B. Pearson International Airport. His complaint to the Commission was
based on the treatment he received at the airport from three inspectors
employed by the Canadian Border Services Agency (CBSA). He submitted his
complaint on December 9, 2003, approximately five months after the event.
[13]
The CBSA
is responsible for national security and public safety at border crossings and
international airports, including Lester
B. Pearson International Airport. All passengers arriving at
that airport are required to be cleared under the Customs Act, R.S.C.
1985, c. 1 (2nd Supp.) and the Immigration and Refugee Protection
Act, S.C. 2001, c. 27. It is undisputed that officers engaged in the
clearance procedure are expected, among other things, to be aware of
indications of unlawful activity, including drug smuggling.
[14]
The
clearing process consists of a primary examination and, in a minority of cases,
a secondary examination. At the primary examination stage, all travellers are
questioned by a customs inspector, known as the “primary inspector”. During
this examination, the traveller’s self-completed Customs Declaration Card is
reviewed for customs, agriculture and health reasons. After the primary
examination, most travellers are directed to pick up their baggage and exit. Some
travellers are directed for “secondary examination”, usually for further
consideration of questions relating to immigration or customs, for the payment
of duty and taxes, or for luggage inspection.
[15]
In
addition to primary and secondary examinations, travellers may be questioned at
any time by a “roving” customs officer. This questioning may be the result of a
random choice by the roving officer, or on the basis that the officer has
noticed an “indicator”. An indicator is something that indicates that further
scrutiny is warranted. The record does not contain a comprehensive explanation
of what those indicators are for travellers directed for secondary examination
or chosen for questioning by a roving inspector, but I assume that it would include
such things as nervous behaviour or evasive answers to routine questions.
[16]
The
incidents that are the subject of Mr. Richards’ complaint all involve
interactions with officers of the CBSA during the clearance process. It is not
alleged that any of the officers did or said anything that was not permitted by
their governing statute. The allegation, as I understand it, is that Mr.
Richards was subject to greater scrutiny and a more intensive examination than
other travellers, for no reason except that he is a black man of Jamaican
origin, with dreadlocks.
[17]
Before
considering the facts, it is worth noting that there is no reason to doubt that
on July 9, 2003, Mr. Richards was referred for secondary inspection and also was
questioned by a roving inspector. However, there is no evidence as to why
Mr. Richards was referred for secondary inspection, or why he was chosen
for questioning by a secondary inspector. In fact, no CBSA inspector recalled
dealing with Mr. Richards on July 9, 2003. There are a number of possible reasons
for their lack of recall. One is that CBSA inspectors deal with a very large
number of people. The other is that five months passed before Mr. Richards submitted
his complaint. There is evidence that on July 8, 2003, 930 travellers cleared
through customs at Lester
B. Pearson International Airport at approximately the same
time as Mr. Richards.
[18]
I now turn
to the summary of facts. This summary is based on the facts as stated by Mr.
Richards, supplemented by information that the investigator received from the
CBSA.
[19]
When Mr. Richards
arrived at the airport, he gave his completed Customs Declaration Card to a
primary inspector. He had declared one bottle of rum. The primary inspector
asked to see the bottle of rum, and Mr. Richards showed it to him. The primary
inspector marked Mr. Richards’ Customs Declaration Card and referred him for
secondary inspection. The primary inspector was never identified. There is no
evidence as to why the primary inspector referred Mr. Richards for secondary
inspection.
[20]
While Mr.
Richards was waiting for his luggage, a roving inspector summoned him by saying
“over here”. Mr. Richards showed him his flight and citizenship documents. According
to Mr. Richards, the roving officer turned all the pages of the flight
documents even though all the information was on the front page, and kept
looking at his citizenship documents. The roving officer also asked Mr.
Richards many questions about why he went to Jamaica and where he stayed. Mr. Richards
answered all of those questions. Mr. Richards alleges that the roving officer
also asked him whether he was “gainfully employed”, a question that Mr.
Richards found offensive because it implied that he could not afford the trip
unless he was engaged in illegal activity. The officer then asked Mr. Richards
what he did for a living. Mr. Richards answered that he was a human rights
officer with the Ontario Human Rights Commission. The officer stopped
questioning Mr. Richards, gave him back his documents, and pointed him to the
luggage search area (I take that to mean the secondary inspection area, to
which Mr. Richards had already been referred by the primary inspection
officer).
[21]
The roving
officer was eventually identified, but he did not recall dealing with Mr. Richards.
He confirmed that if he chose to question a traveler, he would normally ask questions
such as those recalled by Mr. Richards. He also agreed that a person with
dreadlocks would “stand out”. He explained that when he concluded that a
person’s luggage should be searched, he would highlight their Customs
Declaration Card. He said that since Mr. Richards’ card was not highlighted, he
must have believed Mr. Richards’ answers and not referred him for a luggage
inspection.
[22]
The
secondary inspection officer asked Mr. Richards to unlock his two pieces of luggage.
Before searching the luggage, the officer asked Mr. Richards if he had anything
to declare. Mr. Richards answered that he had just one bottle of rum.
The officer asked to see it, and Mr. Richards gave it to him. The
officer held the bottle up, tilting it back and forth. The officer asked Mr.
Richards if he was gainfully employed, and Mr. Richards said that he was. The
officer asked where he worked, and Mr. Richards said that he worked for the
Human Rights Commission. The officer quickly looked through one of Mr.
Richards’ bags, declined to examine the other one, and told Mr. Richards he
could go.
[23]
The
secondary officer was also identified but, like the roving officer, he did not
recall dealing with Mr. Richards. However, he explained that he routinely holds
up alcohol bottles in the manner described by Mr. Richards in order to
determine if the bottle contains liquid cocaine, a substance that may be hidden
in bottles of other liquids. He also confirmed that he often asks travellers
what they do for a living, in order to look for indicators of a legitimate
purpose for travelling, or for indicators of drug smuggling. He denied that he
would have treated Mr. Richards unfairly or discriminated against him because
of his race, colour or place of origin, and stated that he treats all travelers
the same.
[24]
The
computer system that normally records information about primary inspections was
not functioning on July 8, 2003. As a result the only documentary record of Mr.
Richards’ inspection is his Customs Declaration Card. It indicates that Mr.
Richards declared that he was importing one bottle of rum. The markings on the
Card also disclose that the primary inspector referred him for secondary
inspection to have his customs declaration verified, and that no inspector
required Mr. Richards’ luggage to be examined for drugs.
[25]
In the
complaint submitted by Mr. Richards on December 9, 2003, he alleges that he was
subjected to discriminatory treatment on the basis of his race, colour and place
of origin. He argued at that time that the officers assumed that he would be
more likely to be smuggling drugs because he is black and of Jamaican origin,
and was coming from Jamaica.
[26]
Mr.
Richards’ complaint was assigned to an investigator. By letter dated June 18,
2004, Mr. Richards was informed that the CBSA has provided a defence to the
complaint. Mr. Richards was asked for his comments on the defence. Mr. Richards
provided those comments in a letter sent to the investigator on July
19, 2004. In that letter, Mr. Richards elaborated on his complaint, saying, “The
country of Jamaica has been targeted as a ‘source’ country that grows
marijuana and certain persons who look a certain way as part of their customs
consume marijuana” (emphasis in original). Referring to some of the questions
the inspectors asked, he argued that they were “all based on the assumptions
that I practice a certain lifestyle (religion) and therefore drugs are apart (sic)
of that lifestyle. Taking [sic] together, all the action [sic] and
comments made by the officers involved, which led to my negative experience
were unquestionably based on the fact of my race, my gender and my perceived
religious belief.” In
a subsequent telephone conversation with the investigator, Mr. Richards explained
that his reference to “perceived religious belief” was a reference to
Rastafarianism.
[27]
The
inspector did not speak to Mr. Richards again, but he records in his report
some information he obtained about Rastafarianism from a website. Counsel for Mr.
Richards argues that this summary is inaccurate and misleading, but as it
appears to have played some part in the investigator’s reasoning, it is useful
to quote it in full (emphasis in original):
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Originating
in Jamaica
around 1930, Rastafarianism has grown to an estimated 1,000,000 adherents
worldwide. Most members are male, wear their hair in dreadlocks, and use
marijuana as part of their religious practice. Former Ethiopian Emperor Haile
Selassie I was revered as a messiah figure by Rastafarians, who believed his
coronation in 1930 was a fulfillment of a prophetic writing of Marcus Mosiah
Garvey, a Black freedom fighter prominent in the “return to Africa” movement
of the early 1900’s. In the 1970’s, reggae musician Bob Marley “came to
symbolize Rasta values and beliefs,” and “played a catalytic role in
the Rastafarian movement worldwide.” After the death of Haile Selassie in
1975, “the Rastafarian movement has become increasingly secular. Many of
the movement's symbols have lost their religious and ideological
significance. … The Rasta colours (red, green, and gold), in which all
Rastafarian banners and artifacts are painted, have been largely stripped of
their ideological meaning and are now worn by all. Further, dreadlocks are
now sported as a trendy hairstyle by both blacks and whites in Jamaica
and abroad.”
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[28]
The
investigator’s report includes an analysis in which the investigator identifies
and discusses three issues relating to Mr. Richards’ complaint. The first issue
is factual (“whether or not the complainant received unusual scrutiny by the
Customs officers he encountered”), the second involves a judgment of the nature
of the scrutiny (“whether or not the scrutiny was unreasonable and unfair”),
and the third involves an assessment of whether the scrutiny was motivated by
discrimination on a prohibited ground (“whether or not that unusual, unfair
scrutiny was because of his race, colour, national ethnic origin, or perceived
religion”). Logically, a negative answer to any of these questions could result
in a recommendation to dismiss the complaint.
[29]
The
investigator reached a negative conclusion on the first question on the basis
that, although Mr. Richards considered that the questions he was asked were
intrusive and unwarranted, the evidence was that they were not unusual.
[30]
The
investigator also reached a negative conclusion on the second question, based
on the following reasoning:
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The
complainant noted in his rebuttal that he “fits a certain stereotype” in how
he looks, i.e., that of a Rastafarian. Based on his look, the officers
involved asked him about the goods he was importing, and examined his goods
to satisfy themselves that no contravention of any Act of Parliament
occurred. It would seem reasonable that a Customs officer would have to satisfy
himself that a person who appears to be an adherent of a religion that has as
one of its practices the use of an illegal substance is not, in fact,
bringing that illegal substance with him. Contrary to the complainant’s
statement that the questions they asked were about his “character”, the
complainant’s own information indicates that the questions related to his
travel itinerary and occupation, not his innate characteristics. The
information gathered does not support that it was unreasonable for the complainant
to be asked questions and be required to show the contents of his bag by the
officers in the performance of their duties.
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[31]
The
investigator declined to deal with the third question because he did not
consider it necessary. He recommended that the complaint be dismissed on the
basis that “the information gathered does not support the allegation”. The
Commission accepted the recommendation and dismissed Mr. Richards’ complaint
for the reasons he gave. Mr. Richards’ application for judicial review of the
decision of the Commission was dismissed.
Discussion
[32]
Mr.
Richards’ appeal is aimed principally at the investigator’s analysis of the
second issue. The appellant argues that the investigator’s analysis of the
second issue casts doubt on whether the investigator correctly understood and
applied the principles of human rights law. In my view, this argument warrants
some consideration.
[33]
Contrary
to what the investigator wrote, it is doubtful that a CBSA inspector should
assume that a person who is black, of Jamaican origin, and wears his hair in
dreadlocks may be a Rastafarian, and for that reason may use marijuana, and for
that reason may be importing an illegal substance. It follows that a person who
meets that description, and who is selected for unusual scrutiny because he
meets that description, may well feel that a complaint is warranted.
[34]
However, this
reference by the investigator was unnecessary to his decision. The essential
finding of the investigator was factual. The investigator concluded that Mr.
Richards’s complaint did not warrant an enquiry because the evidence did not
establish that, in fact, Mr. Richards was subject to unusual treatment. That
conclusion is not challenged, and by itself justifies the Commission’s decision
to accept the recommendation of the investigator to dismiss the complaint. In
my view, that is a sufficient basis for concluding that Justice Teitelbaum made
no error in dismissing Mr. Richards’ application for judicial review.
Conclusion
[35]
I would
dismiss the appeal with costs.
“K.
Sharlow”
“I
agree.
Robert Décary J.A.”
“I
agree.
J. Edgar Sexton J.A.”
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