Date:
20070625
Docket: A-252-06
Citation: 2007 FCA 247
CORAM: RICHARD
C.J.
LINDEN J.A.
RYER
J.A.
BETWEEN:
ELIYAHU YOSHUA VEFFER
Appellant
(Applicant)
and
THE MINISTER OF FOREIGN AFFAIRS
Respondent
(Respondent)
and
CANADIANS FOR JERUSALEM
Intervener
REASONS FOR JUDGMENT OF THE
COURT
INTRODUCTION
[1]
This
appeal concerns the constitutionality of a Passport Canada policy which
prohibits Canadian citizens born in Jerusalem from indicating, as
other citizens are permitted to do, a country of birth on their passport. The
issue is whether that policy infringes paragraph 2(a) or subsection
15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”),
and if so, whether the infringement is justified under section 1 of the
Charter.
[2]
The
appellant, Mr. Eliyahu Yoshua Veffer, is a Jewish Canadian citizen born in
Jerusalem, who requested that the Minister of Foreign Affairs (the “Minister”)
inscribe on his Canadian passport “Jerusalem, Israel” as his
place of birth. The Minister refused that request, and instead issued Mr.
Veffer a Canadian passport which indicated “Jerusalem” alone and
in full as his place of birth. Mr. Veffer sought judicial review of the
Minister’s decision in the Federal Court on the basis that the Passport Canada
policy violated his Charter rights. His application was dismissed in a
judgment dated May 1, 2006 (reported as (2006) 269 D.L.R. (4th) 552,
2006 FC 540). This is an appeal of that judgment.
[3]
For
the reasons that follow, we are of the view that the appeal must be dismissed.
BACKGROUND
Legal Status of Jerusalem
[4]
It
is undisputed that Jerusalem has immense historic and religious significance
to Jews, Muslims, and Christians throughout the world. It is perhaps because
of this that the legal status of Jerusalem remains today a hotly
contested issue. For the purposes of this appeal, it is sufficient to say that
the United Nations takes the position, and has done so since the adoption of
Resolution 181 in 1947, that Jerusalem is not lawfully within
the territory of any state. In other words, according to the United Nations,
it is a territory without a sovereign. (The details of how and why the United
Nations adopted this position are set out in the reasons for the judgment under
appeal, and need not be repeated here.)
[5]
Consistent
with the United Nations’ position, Canada does not recognize de jure that
any part of Jerusalem is a part of
the territory of the state of Israel, even though Israel has
controlled the western portion of Jerusalem since the early 1950s, and the
eastern portion of Jerusalem since the war of 1967. Canada does,
however, maintain a diplomatic practice of acknowledging Israel’s de facto control
of the western portion of Jerusalem, but not the eastern
portion (see Affidavit of Michael D. Bell, sworn March 22, 2005, at paragraph
26).
Passport Canada Policy
Regarding Place of Birth
[6]
A
passport is an official Canadian document that shows the identity and
nationality of a person for the purpose of facilitating travel by that person
outside Canada. Every
Canadian passport is in a form prescribed by the Minister, issued in the name
of the Minister on behalf of the Crown, and at all times remains the property
of the Crown (see Canadian Passport Order, SI/81-86, sections 2 and 3).
[7]
Passport
Canada (formerly
known as the Passport Office) is a section of the Department of Foreign Affairs
which has been charged by the Minister with the issuing, refusing, revoking,
withholding, recovery and use of Canadian passports. In carrying out its
mandate, Passport Canada has adopted several guidelines, practices and
policies respecting the issuance of passports. This appeal concerns Passport Canada’s policy on
how to signify an applicant’s place of birth in his or her Canadian passport.
[8]
Prior
to 1976, it was Passport Canada’s practice to accept as a country of birth
the country shown by the applicant. This practice was changed, it was explained,
because “some people were for seemingly political reasons” insisting that their
place of birth be shown on their Canadian passport in “other than
internationally recognized form”. A new policy was instituted in 1976, which
was “designed to eliminate any political connotations from passports” (see
Affidavit of Nicholas Charles Wise, sworn March 24, 2005, at paragraph 11). The
policy created a list of correct designations of countries of birth for use by
staff of Passport Canada examining passport applications. An External
Affairs memorandum, dated April 29, 1976, suggests that the country of birth policy
was intended to respond to “rather vociferous elements in the Croatian
nationalist group which object to Croatia not being shown in
their passports as their country of birth”.
[9]
The
current Passport Canada policy is as follows. The inclusion of an
applicant’s place of birth on his or her Canadian passport is optional. An
applicant may choose to have both the city and country name appear, only the
city or country name, or may choose to omit that information altogether. Where
an applicant’s place of birth is “a territory, the sovereignty over which has
not been finally settled under international law or that is not recognized by
the Canadian government, it will be inscribed as requested by the applicant” (at
least insofar as the applicant’s chosen country is on Passport Canada’s list of
correct designations of countries). The applicant’s chosen place of birth is
“neither an official recognition by the Canadian government of any country nor
support by the Canadian government of either faction where the [place of birth]
indicated is a territory the sovereignty over which has not been finally settled
under international law” (see Passport Canada Policy, Ch. 420 Place of Birth).
[10]
The
Passport Canada policy explains that the place of birth is “a feature to assist
in identifying the bearer of the passport and, for the majority of travelers,
may prevent further questioning at entry or exit points”. An applicant who
omits his or her place of birth is required to sign a statement titled “Request
for a Canadian Passport without Place of Birth” and is advised to contact the
representatives of the countries to be visited in order to determine if
difficulties will be encountered in entering those countries without having
that information disclosed in the passport.
[11]
A
special policy exists as regards persons born in Jerusalem: “[d]ue to
the present political situation, Jerusalem must stand alone.” In
other words, where an applicant was born in Jerusalem, the place of birth must
either be omitted, or be inscribed as “Jerusalem” alone and
in full with no country code following. An exception is provided where the
applicant was born in Jerusalem before May 14, 1948, as
Jerusalem was until then contained within the United Kingdom-mandated territory
known as “Palestine”. In that
circumstance, Palestine may be
written in place of Jerusalem on the Canadian Passport where requested by the
applicant (see JWS Bulletin No. 1, issued January 2002).
[12]
Following
the publicity surrounding Mr. Veffer’s filing of this application for judicial
review, Passport Canada conducted a search of all valid Canadian passports
indicating Jerusalem as the place
of birth. It learned, surprisingly, that 146 passports contained errors in the
place of birth inscription. Of those, 2 passports expired almost immediately,
131 passports had “Jerusalem, ISR” inscribed as the place of birth, and
15 passports had “Jerusalem, JOR” inscribed as the place of birth. A
recall notice has been issued in respect of these Canadian passports and
changes have been made to the passport issuing computer system to prevent similar
future errors.
FACTS
[13]
With
this in mind, we turn to the facts of this appeal. Mr. Veffer, now 19 years of
age, was born in a hospital located in the western portion of Jerusalem on December
12, 1987. He eventually became a Canadian citizen, his Commemoration of
Canadian Citizenship having been issued to him while he was living in Jerusalem (the
certificate bears no date of issuance). Mr. Veffer currently resides in Toronto, Ontario.
[14]
Mr.
Veffer applied for a Canadian passport at the Canadian Embassy in Tel Aviv, Israel. He indicated
on the application form that his place of birth was “Jerusalem, Israel”,
but, according to the policy, was issued a Canadian passport, on June 25, 2004,
which identified his place of birth as “Jerusalem” alone without
any specific country designation, as he had sought.
[15]
As
a result, Mr. Veffer’s former counsel wrote a letter to the Department of
Foreign Affairs asking that Mr. Veffer’s passport be amended to include Israel as his
country of birth. The Minister refused that request in a letter dated December
21, 2004, citing the Passport Canada policy respecting Jerusalem as the
reason for doing so. On January 26, 2005, Mr. Veffer filed an application with
the Federal Court to have that decision judicially reviewed.
[16]
Prior
to the hearing, a non-profit corporation called “Canadians for Jerusalem” applied to
the Federal Court, seeking to be interveners in the proceedings. On August 29,
2005, the Canadians for Jerusalem were granted leave to
intervene as a named party in the proceedings to assist the Court by making
submissions regarding the historical significance of Jerusalem to various
groups, and addressing international law issues in connection with the status
of Jerusalem. This order
was endorsed by the Federal Court of Appeal on August 9, 2006.
FEDERAL COURT DECISION
[17]
In
a judgment dated May 1, 2006, the applications judge dismissed Mr. Veffer’s
judicial review application. He held that there was no breach of Mr. Veffer’s
rights respecting freedom of religion under paragraph 2(a) of the
Charter because Mr. Veffer’s passport in no way restricts his right to
sincerely believe that Jerusalem is the capital of Israel, to declare this
belief openly, and to personally teach and disseminate that belief (paragraph
23). He explained that the passport policy is “neither coercion nor a
constraint” (paragraph 24). In addition, the applications judge held that Mr. Veffer
has no right under paragraph 2(a) of the Charter to compel the Minister
to reflect his belief in the passport, which is property of the government and
which is intended to be communication between governments (paragraph 24).
[18]
The
applications judge further held that there was no breach of Mr. Veffer’s
equality rights under section 15 of the Charter. While he agreed with Mr.
Veffer that the Passport Canada policy draws a formal distinction between Mr.
Veffer and others on the basis of place of birth, an analogous ground, he was
not convinced that the distinction amounted to discrimination. The
applications judge reasoned that the nature of Mr. Veffer’s interest affected
is minimal, given that he is still able to travel without any restriction. In
addition, whatever value one might attach to the right to be able to indicate
the country in which one is born on his or her passport, “there is no evident
nexus from an objective perspective to one’s dignity or religion” (paragraph
46). As well, the applications judge explained (at paragraph 49):
The policy behind the
passport was adopted for geopolitical reasons and not in order to target any
group. It also does not have the effect of doing so. There is simply nothing
in the policy or the passport issued pursuant thereto that can be interpreted
as relating to stereotyping, groups or personal characteristics. By no stretch
of any reasonable imagination can the policy or a passport be interpreted as a
ruling, a statement, or even an observation on the passport holder in terms of
value or recognition as a human being. In short, there is nothing in the policy
or the passport issued pursuant to it that in any objective way can be linked
to the Applicant’s dignity
[19]
Having
found no breach of paragraph 2(a) or section 15 of the Charter, the
applications judge refrained from conducting a section 1 analysis.
ISSUES
[20]
This
appeal raises the following four issues:
A. Is there a
justiciable issue?
B. Did the
applications judge err in finding there was no breach of Mr. Veffer’s rights
respecting freedom of religion under paragraph 2(a) of the Charter?
C. Did the
applications judge err in finding there was no breach of Mr. Veffer’s equality
rights under subsection 15(1) of the Charter?
D. If there is a
Charter violation, is it a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under section 1 of the
Charter?
ANALYSIS
A. Is there a
justiciable issue?
[21]
As
a preliminary matter, the intervener argues that the Passport Canada policy
with respect to Jerusalem is not reviewable because the underlying fact
that forms the basis of that policy is the legal status of Jerusalem. The
intervener argues that the status of Jerusalem is fundamentally a
question of international law, an issue which is not justiciable in this
Court. The proper forum for resolving that issue would be the United Nations
Security Council, the International Court of Justice, or a similar
international body. This issue appears not to have been raised before the
applications judge.
[22]
In
our view, this argument is flawed for two reasons. First, Mr. Veffer is
not asking this Court to decide the legal status of Jerusalem, nor to interfere
with Canada’s foreign
policy choices respecting Jerusalem. Accordingly, the
non-justiciability doctrine is not engaged. As Justice Wilson explained in Operation
Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, the doctrine is concerned
with the appropriate role of the courts as the forum for the resolution of
moral or political disputes (paragraphs 38 and 52). No such dispute arises in
this case.
[23]
Second,
there is no question that the Passport Canada policy is subject to Charter
scrutiny, even though the issuance of passports is a royal prerogative. As
stated by Justice Laskin in Black v. Chrétien et al. (2001), 54 O.R.
(3d) 215, at paragraph 46:
By s. 32(1)(a), the
Charter applies to Parliament and the Government of Canada in respect of all
matters within the authority of Parliament. The Crown prerogative lies within
the authority of Parliament. Therefore, if an individual claims that the
exercise of a prerogative power violates that individual’s Charter rights, the
court has a duty to decide the claim.
[24]
Accordingly,
we are of the view that this argument has no merit.
B.
Did the applications judge err in finding there was no breach of Mr. Veffer’s
rights respecting freedom of religion under paragraph 2(a) of the
Charter?
[25]
Paragraph
2(a) of the Charter states:
|
Everyone
has the following fundamental freedoms:
(a)
freedom of conscience and religion;
…
|
Chacun a les libertés fondamentales suivantes :
a)
liberté de conscience et de religion;
…
|
[26]
In
R v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Chief Justice Dickson
defined the individual right of freedom of religion, as follows (at paragraphs
94 and 95):
A truly free society is one which can accommodate a wide variety
of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A
free society is one which aims at equality with respect to the enjoyment of fundamental
freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom
must surely be founded in respect for the inherent dignity and the inviolable
rights of the human person. The essence of the concept of freedom of religion
is the right to entertain such religious beliefs as a person chooses, the
right to declare religious beliefs openly and without fear of hindrance or
reprisal, and the right to manifest religious belief by worship and practice or
by teaching and dissemination. But the concept means more than that.
Freedom can primarily be characterized by the absence of
coercion or constraint. If a person is compelled by the state or the will
of another to a course of action or inaction which he would not otherwise have
chosen, he is not acting of his own volition and he cannot be said to be truly
free. One of the major purposes of the Charter is to protect, within reason,
from compulsion or restraint. Coercion includes not only such blatant forms
of compulsion as direct commands to act or refrain from acting on pain of
sanction, coercion includes indirect forms of control which determine or limit
alternative courses of conduct available to others. Freedom in a broad sense
embraces both the absence of coercion and constraint, and the right to manifest
beliefs and practices. Freedom means that, subject to such limitations as are
necessary to protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way contrary to
his beliefs or his conscience.
[Emphasis added]
[27]
A
similar statement was made by Chief Justice Dickson in R v. Edwards Books
and Art Ltd., [1986] 2 S.C.R. 713, at page 759:
The purpose of s. 2(a) is to
ensure that society does not interfere with profoundly personal beliefs
that govern one's perception of oneself, humankind, nature, and, in some cases,
a higher or different order of being. These beliefs in turn govern one's
conduct and practices. The Constitution shelters individuals and groups only
to the extent that religious beliefs or conduct might reasonably or actually be
threatened. For a state-imposed cost or burden to be prescribed by s. 2(a)
it must be capable of interfering with religious belief or practice. In short,
legislative or administrative action which increases the cost of practicing or
otherwise manifesting religious beliefs is not prohibited if the burden is
trivial or insubstantial: see, on this point, R. v. Jones, [1986] 2
S.C.R. 284, per Wilson J. at p. 314.
[Emphasis added]
[28]
To
summarize, freedom of religion encompasses the right to entertain the religious
beliefs that a person chooses, and the right to practice or teach those beliefs
and declare them openly. It is characterized by the absence of coercion,
constraint, or other interference, either directly or indirectly, with an
individual’s “profoundly personal beliefs”. This is not to say that freedom
of religion prohibits all forms of government interference, or that the
government is required to take positive action to endorse an individual’s
religious beliefs. As indicated in Edwards Books, therefore, freedom
of religion does not protect against burdens or impositions on religious
practice that are “trivial” or “insubstantial”. It protects religious beliefs only
to the extent that they may “reasonably or actually be threatened”.
[29]
In
this appeal, Mr. Veffer argues that his right to freedom of religion has been
violated by the Passport Canada policy, and the Minister’s decision to deny his
request to include “Jerusalem, Israel” as his place of birth in his Canadian
passport. He explains most eloquently in his affidavit, sworn February 23,
2005:
I take pride that I was
born in Jerusalem,
Israel. My
religion teaches me that Jerusalem is the capital of Israel. This is an
integral part of my religious belief and my personal identity.
When I am not allowed to
have Israel in my passport, even though I was born in Israel, I feel that the
Government of Canada is refusing to allow me to express my identity as a member
of the Jewish people; I feel that the Government is rejecting and denying my
religious belief in the significance of Jerusalem to the Jewish religion. When
I see that other people are allowed to have the city and country of their birth
in their passport and I am not, I feel that I am the victim of discrimination
in a matter that touches me deeply. When the Canadian government does not allow
me to put in my passport that I am born in Jerusalem, Israel, they are
denying me the truth of who I am.
[30]
In
Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, the Supreme Court
of Canada outlined the approach to be taken in determining whether there has
been an infringement of a claimant’s rights under paragraph 2(a) of the
Charter. Justice Iacobucci, writing for the majority, explained (at paragraphs
56 and 57):
Thus, at the first stage of a
religious freedom analysis, an individual advancing an issue premised upon a
freedom of religion claim must show the court that (1) he or she has a practice
or belief, having a nexus with religion, which calls for a particular line of
conduct, either by being objectively or subjectively obligatory or customary,
or by, in general, subjectively engendering a personal connection with the
divine or with the subject or object of an individual's spiritual faith,
irrespective of whether a particular practice or belief is required by official
religious dogma or is in conformity with the position of religious officials;
and ( 2) he or she is sincere in his or her belief. Only then will freedom of
religion be triggered.
Once an individual has shown
that his or her religious freedom is triggered, as outlined above, a court must
then ascertain whether there has been enough of an interference with the
exercise of the implicated right so as to constitute an infringement of freedom
of religion under the Quebec (or the Canadian) Charter.
[31]
In
this case, the religious belief which Mr. Veffer argues is interfered with is
that Jerusalem is the capital of Israel. Anselem instructs
that this Court is not to decide the validity of Mr. Veffer’s religious belief,
but is only qualified to inquire into the sincerity of the belief (Anselem, at
paragraphs 50 and 51). The applications judge did not question the sincerity
of Mr. Veffer’s religious belief, and Mr. Veffer’s credibility was not put at
issue in this appeal. Therefore, the first two requirements of the freedom of
religion test are met.
[32]
Nevertheless,
we are not persuaded that there has been enough of an interference with the
exercise of Mr. Veffer’s rights so as to constitute an infringement of his
freedom of religion under paragraph 2(a) of the Charter. Some of the
types of interference which have been found to constitute a violation of
freedom of religion include by-laws which prevented Orthodox Jews from setting
up succahs on balconies of their co-owned property (Anselem), government
authorization of a blood transfusion to a child whose parents were Jehovah’s
Witnesses (Children’s Aid Society of Metropolitan Toronto, [1995] 1
S.C.R. 315), a school board decision which denied a Sikh boy from wearing his
kirpan to school (Multani v. Commission scolaire Marguerite-Bourgeoys, 2006
SCC 6), and provincial legislation which required the Hutterian Brethren to
have their photographs taken for the purpose of drivers’ licenses (R v.
Hutterian Brethren of Wilson Colony, 2007 ABCA 160). In all of the above
cases, government action or legislation substantively interfered with the
claimants’ religious beliefs.
[33]
When
one compares Mr. Veffer’s complaint with the above examples, it becomes
abundantly clear that there is no violation of freedom of religion in this
case. The applications judge was correct to conclude that the Passport Canada
policy in no way threatens, inhibits or constrains Mr. Veffer’s ability to
believe that Jerusalem is the capital of Israel, to declare this belief openly
and publicly, and to teach and disseminate that belief. In addition, the
policy cannot be said to interfere with his religious identity, or impose an
expression of religious identity which is not true to Mr. Veffer. In our
view, any effect that the Passport Canada policy may have on Mr. Veffer’s
freedom of religion right is negligible, and is not prohibited by the Charter,
which requires the imposition of a burden that is substantial in order to apply.
[34]
Mr.
Veffer submits that there is a basic human right to preserve one’s identity.
In support, he refers to Article 8(1) of the United Nations Convention on
the Rights of the Child, [1992] Can. T.S. No. 3 (the “Convention”),
which reads: “State Parties undertake to respect the right of the child to
preserve his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference”. We understand Mr.
Veffer’s argument to be that the right to preserve one’s identity encompasses
the right to compel the state to reflect that identity in state-issued identity
documents. In this case, it is argued, the Minister’s refusal to recognize an
element fundamental to his religious identity in an identity document is
denying to Mr. Veffer “the truth of who I am”. This, it is said, is an
interference with his right to preserve his identity, and consequently, his
freedom of religion rights under paragraph 2(a) of the Charter.
[35]
We
are unable to accept this argument. There exists no freestanding right to
preserve identity in Canadian law, either at common law or in a statute.
Although Canada is a
signatory to the Convention, it has not implemented the rights
articulated in Article 8(1) into Canadian legislation. What Mr. Veffer is
effectively asking for is the right to communicate or broadcast his religious
beliefs and national origin in a government document. We agree with the
applications judge that no such right exists under paragraph 2(a) of the
Charter.
[36]
For
these reasons, we would dismiss this ground of the appeal.
C.
Did the applications judge err in finding there was no breach of Mr. Veffer’s
equality rights under subsection 15(1) of the Charter?
[37]
Subsection
15(1) of the Charter provides:
|
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.
|
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.
|
[38]
Mr.
Veffer argues that his equality rights under subsection 15(1) of the Charter
are infringed because he has been denied “equal benefit of the law”.
Specifically, he argues that he has been deprived of the opportunity, which the
Passport Canada policy makes available to others, to have his country of birth
appear on his Canadian passport. Mr. Veffer argues that this denial is on the
basis of his Jewish identity (an enumerated ground) and his place of birth (an
analogous ground).
[39]
To
determine whether a breach of subsection 15(1) of the Charter has occurred, the
Supreme Court has identified, in Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497 at paragraph 88, three
requirements which must be met. These requirements were summarized recently by
Chief Justice McLachlin in Gosselin v. Quebec (Attorney
General), [2002]
4 S.C.R. 429, at paragraph 17, as follows:
To establish a violation
of s. 15(1), the claimant must establish on a civil standard of proof that: (1)
the law imposes differential treatment between the claimant and others, in
purpose or effect; (2) one or more enumerated or analogous grounds are the
basis for the differential treatment; and (3) the law in question has a purpose
or effect that is discriminatory in the sense that it denies human dignity or
treats people as less worthy on one of the enumerated or analogous grounds.
[40]
Recently,
in Auton v. British Columbia, [2004] 3 S.C.R. 657, Chief Justice
McLachlin explained that “There is no magic in a particular statement of the
elements that must be established to prove a claim under s. 15(1)…The important
thing is to ensure that all the requirements of s. 15(1), as they apply to the
case at hand, are met” (at paragraph 23). In addition, whatever framework is
used, an overly technical approach should be avoided. A Court must look at
the “reality of the situation” and assess whether there has been discriminatory
treatment having regard to the purpose of subsection 15(1) (at paragraph 25).
Benefit of the Law
[41]
Before
addressing whether the three elements required to establish discrimination are
present in this case, it is necessary to consider a preliminary issue: does the
Passport Canada policy in issue generally confer a “benefit of the law” within
the meaning of subsection 15(1) of the Charter? The issue here is not whether
the Passport Canada policy is a “law”, as it is well established that laws for
the purpose of section 15 include government policies (see McKinney v.
University of Guelph, [1990] 3 S.C.R. 229, at paragraph 49). Rather, the
issue is whether the Passport Canada policy confers a “benefit” on others,
which it denies to Mr. Veffer. In our view, it does not. We will explain.
[42]
The
meaning of the word “benefit” has not been the subject of judicial scrutiny,
insofar as it is used in section 15 of the Charter. In fact, the guarantee of
“equal benefit of the law” is a relatively new creation. Before the enactment
of the Charter in 1982, paragraph 1(b) of the Canadian Bill of Rights
only guaranteed “the right to equality before the law and the protection of
the law”. It was thought, as a result of the Supreme Court decision in Bliss
v. Canada (Attorney General), [1979] 1 S.C.R. 183, that the equality
guarantee was intended to address burdens imposed by legislation, and not
benefits conferred. With the insertion of “equal benefit of the law” in
subsection 15(1) of the Charter, Parliament has ostensibly created a broader,
more comprehensive, equality guarantee. The guarantee of “equal benefit of the
law” has since been used to successfully challenge substantial things like the
denial of pension benefits and employment insurance schemes, the provision of
medical treatment, and other legislative benefits schemes.
[43]
In
recent cases, such as Auton and Gosselin, the Supreme Court has indicated
somewhat imprecisely that subsection 15(1) guarantees “equal treatment”, which
might imply that a claimant need only show a differentiation to engage the
equality guarantee. However, it is not just any differential treatment which
is sufficient to invoke subsection 15(1). What is significant is treatment
which denies “equal protection” or “equal benefit of the law”. These words must
have a discernible meaning in our Charter, and it is imperative that a claimant
who intends to make a serious allegation of discrimination demonstrate that the
so-called treatment complained of falls within the language of the equality
guarantee, that is, that equal benefit or equal protection has been denied.
[44]
What,
then, constitutes a “benefit” for the purposes of subsection 15(1) of the
Charter? It is helpful, in deciding this threshold requirement, to review how
some other fundamental freedoms of the Charter are understood. As already
discussed, the freedom of religion and conscience right in paragraph 2(a) of
the Charter protects only government conduct which interferes with the practice
or observance of religious beliefs that are substantial.
[45]
Consistent
with that, the jurisprudence has established that section 7 of the Charter is
engaged only where an applicant can demonstrate that government conduct
seriously interferes with an individual’s “life, liberty and security of the
person”. To explain, it is not every deprivation of an individual’s liberty or
security of the person which engages section 7 of the Charter, for almost every
piece of government legislation could be said to restrain individuals in one
way or another. “Liberty” has been defined, for the purpose of section 7, as
freedom from physical restraint, and freedom from state compulsions or
prohibitions which affect important and fundamental choices (see Blencoe v.
British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraph
49). Similarly, “security of the person” has been defined as freedom from
state interference with bodily integrity and serious state-imposed
psychological stress (Blencoe, at paragraph 55). While the right to
“life” has not been extensively discussed, it surely includes the right to be
free from a risk of death, and free from excessive waiting times for medical
treatment in a public health care system (see Chaoulli v. Quebec (Attorney
General), [2005] 1 S.C.R. 791).
[46]
In
keeping with this theme, the guarantee of “equal benefit of the law” in
subsection 15(1) of the Charter must be understood to refer to benefits which objectively
have some meaningful consequence to the individuals affected. In our view,
this threshold requirement has not been met in this case.
[47]
Mr.
Veffer argues that the “benefit” conferred on others, which is not available to
him, is the ability to express an important aspect of his religious identity in
a government identity document. While Mr. Veffer may sincerely believe that
this amounts to a denial of a “benefit that is conferred on others, we are not
persuaded that this is the case. The purpose of a passport is, as already
discussed, to identify an individual as a Canadian citizen and to facilitate
travel to other countries. Here, Mr. Veffer was issued a passport, the
passport identifies him as a Canadian citizen, and there is no evidence that
the absence of a country name beside “Jerusalem” hinders his ability to
travel in any way. Nor is there any suggestion that the addition of a country
name will improve his ability to travel or be identified as a Canadian citizen.
[48]
We
emphasize that the equality guarantee is one of the most fundamental values
protected in the Charter, and an allegation that the government has
discriminated against someone must not be taken lightly. By the same token,
subsection 15(1) should not be used simply because an individual is displeased
with some differential treatment under a government policy. In our view, it
would trivialize the equality guarantee if it were used to attack every
situation where an individual subjectively feels annoyed or offended by
legislation that affects him differently than others. To engage section 15 of
the Charter, an applicant must, therefore, demonstrate that a meaningful
“benefit of the law” has been denied. This Mr. Veffer has not done.
Application of the Law
Test
[49]
Having
said that, even if Mr. Veffer was denied a “benefit” conferred by the Passport
Canada policy to others, we are of the view that Mr. Veffer has not been
discriminated against within the meaning of subsection 15(1) of the Charter.
More specifically, we are not persuaded that a reasonable person would conclude
that the Passport Canada policy denies Mr. Veffer his fundamental human
dignity. In the following paragraphs, the three step analysis propounded in Law
will be undertaken.
Comparator Group
[50]
As
each of the three inquiries in Law proceeds on the basis of a comparison
with another relevant group, it is necessary to first determine the group of
persons with whom Mr. Veffer can invite comparison (Auton, at paragraph
48). In Hodge v. Canada, [2004] 3 S.C.R. 357, Justice Binnie explained
that the appropriate comparator group is “the one which mirrors the
characteristics of the claimant…relevant to the benefit or advantage sought
except that the statutory definition includes a personal characteristic that is
offensive to the Charter or omits a personal characteristic in a way that is
offensive to the Charter” (paragraph 65).
[51]
In
this case, Mr. Veffer has identified all Canadian citizens born outside of Jerusalem as the
appropriate comparator group, because all other Canadian citizens are allowed
to have both the city and country of their birth indicated in their passport.
The applications judge agreed with this chosen group, as do we.
[52]
While
one might argue that the comparator group is only those other citizens born in
territories with a disputed sovereign, this group would be artificially small.
In fact, when one looks at the reality of how the Passport Canada policy
operates, it is only Canadian citizens born in Jerusalem after May
14, 1948 that are not allowed to identify a country of birth. In Auton,
the Supreme Court emphasized that the comparator group must align with both
the benefit sought and the “universe of people potentially entitled” to it and
the alleged ground of discrimination (paragraph 53; see also Hodge, at
paragraphs 25 and 31). In this case, the “universe of people potentially
entitled” to identify their country of birth on their passport is all other
Canadian citizens.
Is there differential
treatment?
[53]
Having
determined that the comparator group in this case is other Canadian citizens,
it is appropriate to consider the first step in the Law test: does the
Passport Canada policy impose differential treatment between Mr. Veffer and
other Canadian citizens, either in purpose or effect? In our view, it does.
The Passport Canada policy treats Canadians born in Jerusalem differently
from those born elsewhere based on place of birth. Canadian citizens born in Jerusalem after May 14,
1948 cannot choose to have a country of birth specified on their passport,
whereas Canadian citizens born in all other countries, including all other
disputed territories, can.
[54]
Mr.
Veffer argues that, in addition to the differential treatment on the basis of
place of birth, the Passport Canada policy fails to take into account his
already disadvantaged position as a Jewish person born in Jerusalem. Mr. Veffer
submits that, while the Jerusalem exception applies equally
to all persons born there, it adversely affects him and other Jewish Canadians
because it is only Jews who hold, as a matter of religious belief, that
Jerusalem is central to Israel. Thus, he says, it is Jewish Canadians
born in Jerusalem who are uniquely
disadvantaged by the policy prohibiting the issuance of a passport indicating “Jerusalem, Israel” as
a place of birth.
[55]
While
we, like the applications judge, do not doubt the sincerity of Mr. Veffer’s
religious beliefs, we are unable to accept the argument that Jewish Canadians
born in Jerusalem are
adversely affected by the Passport Canada policy as compared to all other
Canadians born in Jerusalem. It is undisputed that Jerusalem has
religious significance to each of the three monotheistic religions that are
based there. Accordingly, it is not the place of this Court to debate the
relative religious significance of Jerusalem to each of these
faiths. It is, for the purpose of this case, sufficient to say we are unable to
hold on the record that there is additional differential treatment between
Jewish and non-Jewish Canadian citizens who are born in Jerusalem after May
14, 1948.
Analogous Ground
[56]
The
second step in Law requires the claimant to establish that the
differential treatment complained of is on the basis of one or more enumerated
or analogous grounds. In this case, it is agreed by the parties that “place of
birth” is an analogous ground to those enumerated in subsection 15(1) of the
Charter. Place of birth meets the criteria laid out by the Supreme Court in Corbiere
v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203, at paragraph 13,
namely that it is an innate, immutable characteristic and is not alterable by
conscious action.
Does the differential
treatment discriminate?
[57]
The
third, and most important, step in Law is to examine whether the
differential treatment created by the Passport Canada policy is
discriminatory. It must be said that a finding that government conduct or
legislation is discriminatory is a serious matter, and must not be taken
lightly. A finding of discrimination has considerable negative connotations,
and requires the government to justify its actions under section 1 of the
Charter, which is an onerous and costly task.
[58]
In
making the assessment at this stage, it is important to emphasize that not
every distinction which legislation creates is discriminatory. It is only
those differences in treatment which are found to violate “essential human
dignity” through the imposition of disadvantage, stereotyping, or political or
social prejudice, which will transgress the equality guarantees of section 15
of the Charter (Law, at paragraph 51). “Human dignity” was defined by
the Supreme Court at paragraph 53 of Law, as follows:
Human dignity means that
an individual or group feels self-respect and self-worth. It is concerned with
physical and psychological integrity and empowerment. Human dignity is
harmed by unfair treatment premised upon personal traits or circumstances which
do not relate to individual needs, capacities or merits. It is enhanced by
laws which are sensitive to the needs, capacities, and merits of different
individuals, taking into account the context underlying their differences. Human
dignity is harmed when individuals and groups are marginalized, ignored, or
devalued, and is enhanced when laws recognize the full place of all
individuals and groups within Canadian society. Human dignity within the
meaning of the equality guarantee does not relate to the status or position of
an individual in society per se, but rather concerns the manner in which a
person legitimately feels when confronted with a particular law. Does the law
treat him or her unfairly, taking into account all of the circumstances
regarding the individuals affected and excluded by the law?
[Emphasis added]
[59]
More
recently, the Supreme Court in Gosselin wrote, at paragraph 20:
The aspect of human
dignity targeted by s. 15(1) is the right of each person to participate
fully in society and to be treated as an equal member, regardless of irrelevant
personal characteristics, or characteristics attributed to the individual
based on his or her membership in a particular group without regard to the
individual’s actual circumstances.
[Emphasis added]
[60]
To
determine whether the differential treatment in this case is discriminatory,
the issue must be approached from an objective perspective, taking into account
the particular traits and circumstances of the claimant. The question to be
asked is whether the Passport Canada policy would offend the human dignity of a
reasonable Canadian citizen born in Jerusalem after May 14, 1948,
dispassionate and fully appraised of the circumstances of Mr. Veffer, possessed
of similar attributes to, and under similar circumstances as, Mr. Veffer (Law,
at paragraphs 59 and 60).
[61]
In
answering this question, Law proposes that the following four contextual
factors be taken into consideration: (1) pre-existing disadvantage; (2)
correspondence between the distinction and the claimant’s characteristics or circumstances;
(3) the existence of ameliorative purposes or effects; and (4) the nature of
the interest affected. These factors are not exhaustive, nor must they all be
present to support a finding of discrimination (see Trociuk v. British
Columbia (Attorney General), [2003] 1 S.C.R. 835, at
paragraph 20). We will address each of these factors in turn.
[62]
(1)
Pre-existing disadvantage. It is not disputed that Mr. Veffer, as a
member of the Jewish community in Jerusalem, is a member of a group
that has historically been persecuted and disadvantaged. This is not to say
that others born in Jerusalem are not also the subject of pre-existing
disadvantage, as many undoubtedly are. What is important for the purposes of
this case, however, is that the evidentiary record does not suggest that the
stereotyping, prejudice, and vulnerability suffered historically by Jews is
owing to their place of birth. Accordingly, this factor weighs against a
finding of discrimination.
[63]
Having
said that, we leave open the possibility that persons born in Jerusalem,
whether they be Muslims, Christians or Jews, and whatever views they may have
on the status of Jerusalem, suffer a disadvantage on account of their
place of birth because their claims of sovereignty are not recognized internationally.
However, no evidence was presented on this point.
[64]
(2)
Correspondence. The evidentiary record discloses that Jerusalem is, as a
matter of international law, a territory without an internationally recognized
sovereign. In addition to that, persons born in and around Jerusalem hold serious
competing beliefs as to the legal status of that territory. This is
undoubtedly because Jerusalem is a city which has immense historic and
religious significance to Jews, Christians and Muslims alike. The Passport
Canada policy on Jerusalem merely seeks to reflect international law,
recognizing the unique circumstances and sensitivities of all the people who
live there. It is not, as Mr. Veffer suggests, “group targeting” or a
reflection of arbitrary or stereotypical decision-making.
[65]
However,
the Passport Canada policy is more than that. It is acknowledgment by the
Canadian government of the following direction by former Secretary-General,
Kofi Annan, in a statement delivered to an international meeting on the
Question of Palestine on March 8, 2005:
The long cherished dream
of a vast majority of Israelis and Palestinians has been to live a normal life
in peace and security. At long last, all of us can sense a newfound
movement towards that dream. I urge everyone -- the parties and the
international community -- to refrain from any actions that would be
detrimental to the resumption of negotiations and implementation of the Road
Map, or that could prejudge the resolution of final status issues.
[Emphasis added]
While the current political situation in
the Middle
East
may not be the same today as it was when this statement was delivered, the
importance of the objective of neutrality and non-interference remains
constant.
[66]
The
Passport Canada policy is also the result of political sensitivity surrounding
the status of Jerusalem, at the domestic
and international level. Canada has, in the past, created or proposed
policies which have been perceived by some as taking sides in the dispute. For
example, in 1979 the Canadian government announced that the Canadian Embassy in
Tel Aviv, Israel would be relocated to Jerusalem. This
announcement apparently generated immense controversy, both domestically and
internationally. It resulted in a study, led by the Right Honourable Robert L.
Stanfield, on the spectrum of Canada’s relationship with the countries of the
Middle East and North Africa, and more specifically, the question of the
location of the Canadian Embassy in Israel. Following the release
of the Stanfield Report, which recommended against moving the embassy, the
Canadian government withdrew its earlier announcement (see Affidavit of Michael
D. Bell, at paragraphs 31 and 32). Of course, this appeal has nothing to do
with the location of the Canadian Embassy in Israel.
[67]
In
sum, we are of the view that the Passport Canada policy is a policy which
reflects the truly unique circumstances pertaining to Jerusalem, and respects
the human dignity of all persons born and living in Jerusalem.
Accordingly, we agree with the applications judge that there is some correspondence
between the Passport Canada policy and the particular circumstances of persons
born in Jerusalem.
[68]
(3)
Ameliorative purpose. There is no contention that there is an
ameliorative purpose or effect of the Passport Canada policy.
[69]
(4)
Nature of the interest affected. Mr. Veffer argues that the interest
affected is the ability to express his identity in a government-issued identity
document. He argues that this right is of fundamental importance to him,
because it allows him to express his subjectively held religious and political
beliefs about who he perceives himself to be.
[70]
In
our view, though significant to Mr. Veffer, the interest affected here is of
minor objective significance. It is merely the right to display in one’s
passport the country in which one was born. The interest is declaratory in
nature, and has no proven negative effect on the ability of the passport holder
to be identified as a Canadian citizen and to travel to other countries, the
two purposes for which a passport is issued. While Mr. Veffer may feel that
the right to declare his country of birth is of fundamental importance, we
believe a reasonable person in his position would not agree. Mr. Veffer
still maintains the freedom to express his faith and his subjectively held
views as to the status of Jerusalem; he is just not able to
do so in his Canadian passport. He may also have the option open to him, as a person
born in Israel, to obtain
and carry an Israeli passport which may well describe his place of birth as Jerusalem, Israel.
Conclusion on Discrimination
[71]
When
taken together, an application of the contextual factors to the circumstances
of this case demonstrates that Mr. Veffer has not been discriminated against in
that his human dignity has not been invaded. There is no evidence in the record
that Mr. Veffer, or persons with similar traits and in similar circumstances,
suffer or have historically suffered disadvantage merely on account of place of
birth. In addition, there is a correspondence between the Passport Canada
policy and the special circumstances pertaining to Jerusalem, and the
Canadian citizens born there. The Passport Canada policy not only reflects the
status of Jerusalem under
international law, it takes account of the highly sensitive situation among the
persons born in that territory, and the political delicacy surrounding that
conflict at the international level. The third factor, ameliorative purpose,
serves no purpose in this appeal. Finally, the nature of Mr. Veffer’s interest
affected is in our view minimal. The absence of a country of birth printed on
a passport has no impact on his ability to travel, or to be fully recognized as
a Canadian citizen.
[72]
We
are of the view, therefore, that a reasonable person in the position of Mr.
Veffer would consider the special status of Jerusalem under
international law, and would not be offended by the current Passport Canada policy, and
the Canadian passports issued there under, in a way that interferes with human
dignity. There is no discrimination here.
CONCLUSION
[73]
Having
found no prima facie violation of the Charter, there is no need to
address the fourth ground of appeal, namely, whether any breach of the Charter
is justified by section 1.
[74]
We
would dismiss this appeal, but, in all the circumstances, without costs.
“J.
Richard”
“A.M.
Linden”
“C.
Michael Ryer”
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