Docket: T-688-15
Citation:
2017 FC 159
Ottawa, Ontario, February 9, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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FALLAN DAVIS and
CANADIAN HUMAN RIGHTS COMMISSION
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The Attorney General of Canada seeks judicial
review of a decision of the Canadian Human Rights Tribunal [Tribunal] dated
December 9, 2014 (2014 CHRT 34). The Tribunal upheld, but only in part, a human
rights complaint made by Teiohantathe Fallan
Davis. Ms. Davis alleged that officers of the Canada Border Services
Agency [CBSA] discriminated against her on the basis of race, age and sex,
contrary to s 5 of the Canadian Human Rights Act, RSC 1985, c H-6
[CHRA].
[2]
Ms. Davis is a member of the Akwesasne First
Nation. Her complaint arose from events that occurred more than ten years ago,
on November 18, 2005, at the Cornwall Island border crossing between New York
State and Ontario. At that time, the border crossing was located on the Akwesasne
Reserve, which straddles both sides of the Canada-United States border.
[3]
Ms. Davis’ complaint generated considerable
litigation. The Attorney General sought judicial review of the decision of the
Canadian Human Rights Commission [Commission] to refer Ms. Davis’ complaint to
the Tribunal. The application was dismissed by Justice Harrington, and an
appeal to the Federal Court of Appeal was also dismissed (Canada (Attorney
General) v Davis, 2009 FC 1104, aff’d 2010 FCA 134). The Attorney General
then brought a motion before the Tribunal to dismiss Ms. Davis’ complaint on
the ground that the CBSA was not providing a service to the public when it
performed inspections at border crossings, and the complaint therefore fell
outside the scope of s 5 of the CHRA. The Tribunal disagreed, and the Attorney
General sought judicial review of that decision. The application was dismissed
by Justice Mactavish on January 16, 2013 (Canada (Attorney General) v Davis,
2013 FC 40).
[4]
The Tribunal’s inquiry into Ms. Davis’ complaint
began on November 13, 2012 and continued for 49 days. The Tribunal upheld only
one aspect of Ms. Davis’ wide-ranging complaint. It found that the general
attitude of CBSA Officer Denis Demers, and the responses he provided to Ms.
Davis, were sufficient to establish that Ms. Davis experienced an adverse
impact with respect to the provision of a service by the CBSA, and that Officer
Demers’ actions were based, perhaps unconsciously, on racial stereotyping.
[5]
The Tribunal’s findings of fact are at the heart
of its specialized jurisdiction, and are owed a high degree of deference. This
Court will interfere with a finding of discrimination only if the Tribunal’s
decision falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[6]
For the reasons that follow, I have concluded
that the Tribunal’s decision to uphold a single aspect of Ms. Davis’ human
rights complaint falls within the range of possible, acceptable outcomes.
However, two of the remedies ordered by the Tribunal had no rational connection
to the aspect of Ms. Davis’ complaint that was ultimately upheld. One of these
remedies was granted without providing sufficient notice to the Attorney
General or a reasonable opportunity to respond. The application for judicial
review is therefore allowed in part, and two of the remedies ordered by the
Tribunal are set aside.
II.
Background
[7]
The border crossing on Cornwall Island, which
has since been closed, was a long-standing point of friction between the
Government of Canada and the Akwesasne First Nation. In an attempt to ease
tensions, the CBSA allocated a special lane to members of the First Nation, and
adopted modified inspection procedures pursuant to the Akwesasne Residents
Remission Order, SOR/91-412.
[8]
On the morning of November 18, 2005, Ms. Davis
arrived at the Cornwall Island border crossing. She was driving a sport utility
vehicle [SUV]. She entered the lane that was allocated to members of the Akwesasne
First Nation. A CBSA officer asked her whether she was carrying any contraband
goods, and then directed her towards the nearby Vehicular and Cargo Inspection
System [VACIS].
[9]
The VACIS is a mobile unit deployed by the CBSA
to check vehicles, particularly trucks and vans, for hidden compartments that
may be used to transport drugs, weapons or other contraband. Ms. Davis was
asked by a second CBSA officer to drive to the VACIS unit and exit her vehicle.
Once she was outside her SUV, a third CBSA officer, Denis Demers, instructed
her to wait in a designated area. There was a heated exchange between Ms. Davis
and Officer Demers. A fourth CBSA officer subsequently spoke to Ms. Davis about
the payment of taxes on goods she was importing from the United States.
III.
Decision under Review
[10]
The Tribunal found that Ms. Davis lacked
credibility, and that she had significantly embellished the facts giving rise
to her complaint. It held that Ms. Davis’ attitude toward the CBSA officers was
“clearly and definitely aggressive, disrespectful,
defiant and finally, assertive of her rights as an Aboriginal person who
resides on Cornwall Island.” Ms. Davis was known to CBSA officers as
someone who was “arrogant and critical regarding the
presence of the border crossing on Cornwall Island.” During a previous
incident on August 6, 2005, Ms. Davis had expressed her opposition to the
border crossing, and had threatened to blow it up.
[11]
Ms. Davis used very strong profanity in her
dealings with Officer Demers. He testified that he had never been confronted
with this level of verbal abuse at any other time in his career with the CBSA.
The Tribunal nevertheless held that it was incumbent upon the CBSA officers,
specifically Officer Demers, to prevent the situation from deteriorating. The
Tribunal found that Officer Demers did not fulfil this responsibility, and that
he did not take adequate take steps to maintain control of the dialogue or calm
Ms. Davis down.
[12]
The Tribunal upheld Ms. Davis’ complaint in
part. It found that “a review of Officer Demers’
conduct, in light of his attitude in general, as well as the responses he
provided to [Ms. Davis] are sufficient for me to recognize that Officer Demers
acted, even unconsciously, based on racial stereotype.” The Tribunal
based its conclusion on the following factual findings:
(a) Prior to the facts on November 18, 2005, Officer Demers
admitted that it was general knowledge that there was a dispute between the
Canadian government and the Mohawk authorities regarding the territory on which
the Cornwall Island border crossing was located;
(b) Also in his testimony, Officer Demers admitted that he had
had no specific training on knowledge gained regarding the culture and
traditions of Aboriginal communities;
(c) Officer Demers raised his voice in dealing with [Ms. Davis’]
conduct in an attempt to assert his authority and what he called “force
continuum”;
(d) In his discussions with [Ms. Davis], Officer Demers pointed
to his badge to identify himself to [Ms. Davis], who was questioning him in
that respect;
(e) Officer Demers questioned [Ms. Davis] about what job she
could hold, for no apparent reason;
(f) In response to a direct statement by [Ms. Davis] on the
territorial aspect of the location occupied by the Respondent’s border crossing
on Cornwall Island, the evidence clearly established that he answered by saying
that he was on the “the property of Canada Customs”;
(g) Furthermore, in light of [Ms. Davis’] aggressive and defiant
attitude, Officer Demers stated that [Ms. Davis’] conduct could, in his
experience, be an assertion that she had done something wrong.
[13]
The Tribunal awarded Ms. Davis $5,000.00
pursuant to s 53(2)(e) of the CHRA, together with interest. The Tribunal also
adopted all of the remedies proposed by the Commission and one additional
remedy pursuant to s 53(2)(a) of the CHRA.
IV.
Issues
[14]
This application for judicial review raises the
following issues:
A.
Was the Tribunal’s finding that Officer Demers
discriminated against Ms. Davis reasonable?
B.
Were the remedies ordered by the Tribunal
reasonable and procedurally fair?
V.
Analysis
[15]
In dissenting reasons, subsequently affirmed by
the Supreme Court of Canada, Justice Evans of the Federal Court of Appeal
acknowledged that the Tribunal’s findings of fact are at the heart of its
specialized jurisdiction, and are owed a high degree of deference (Public
Service Alliance of Canada v Canada Post Corporation, 2010 FCA 56 at para
207 [Public Service Alliance]; Public Service Alliance of Canada v
Canada Post Corp, 2011 SCC 57; see also Cooper v Canada (Human Rights
Commission), [1996] 3 S.C.R. 854 at para 64). A finding of discrimination by
the Tribunal is subject to review by this Court against the standard of
reasonableness (Turner v Canada (Attorney General), 2017 FCA 2 at para
51). The Court will intervene only if the decision falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47).
[16]
Questions of procedural fairness are subject to
review against the standard of correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43).
A.
Was the Tribunal’s finding that Officer Demers
discriminated against Ms. Davis reasonable?
[17]
The Attorney General does not take issue with
the legal framework applied by the Tribunal to assess Ms. Davis’ human rights
complaint. The Tribunal cited Moore v British Columbia (Education), 2012
SCC 61 [Moore] at paragraph 33 for the following basic propositions:
… complainants are required to show that
they have a characteristic protected from discrimination under the Code;
that they experienced an adverse impact with respect to the service; and that
the protected characteristic was a factor in the adverse impact. Once a prima
facie case has been established, the burden shifts to the respondent to
justify the conduct or practice, within the framework of the exemptions
available under human rights statutes. If it cannot be justified, discrimination
will be found to occur.
[18]
The Tribunal cited Ont Human Rights Comm v
Simpsons-Sears, [1985] 2 S.C.R. 536 at page 558 for the proposition that “[a] prima facie case in this context is one which
covers the allegations made and which, if they are believed, is complete and
sufficient to justify a verdict in the complainant's favour in the absence of
an answer from the respondent-employer.” The Tribunal also noted the
Supreme Court of Canada’s decision in FH v McDougall, 2008 SCC 53 at
paragraph 46:
[E]vidence must always be sufficiently
clear, convincing and cogent to satisfy the balance of probabilities
test. But again, there is no objective standard to measure
sufficiency. In serious cases, like the present, judges may be faced with
evidence of events that are alleged to have occurred many years before, where
there is little other evidence than that of the plaintiff and
defendant. As difficult as the task may be, the judge must make a
decision. If a responsible judge finds for the plaintiff, it must be
accepted that the evidence was sufficiently clear, convincing and cogent to
that judge that the plaintiff satisfied the balance of probabilities test.
[19]
The Tribunal observed that in cases of
discrimination, direct evidence is not necessarily available, and that “circumstantial evidence may lead tribunals to conclude that
there was a form of discrimination” (citing Basi v Canadian National
Railway Company, [1988] CHRD No 2). In the context of discrimination, the
Tribunal stated that “[t]he focus of the enquiry is on
the Respondent’s actions towards the complainant” (citing Peel Law
Association v Pieters, [2013] OJ No 2695).
[20]
The Tribunal derived the following principles
from the jurisprudence, including Radek v Henderson Development (Canada) Ltd,
2005 BCHRT 302 and Phipps v Toronto Police Services Board, 2009 HRTO
877:
1) the prohibited ground or grounds of discrimination need not
be the sole or the major factor leading to the discriminatory conduct; it is
sufficient if they are a factor;
2) there is no need to establish an intention or motivation to
discriminate; the focus of the enquiry is on the effect of the respondent’s
actions on the complainant;
3) the prohibited ground or grounds need not be the cause of
the respondent’s discriminatory conduct; it is sufficient if they are a factor
or operative element;
4) there need be no direct evidence of discrimination;
discrimination will more often be proven by circumstantial evidence and
inference; and
5) racial stereotyping will usually be the result of subtle
unconscious beliefs, biases and prejudices.
[21]
Applying the test in Moore, the Tribunal
found that Ms. Davis’ status as an Aboriginal person satisfied the first
branch, and that she had a characteristic that was protected from
discrimination.
[22]
With respect to the second branch, the Tribunal
found that Ms. Davis experienced an adverse impact with respect to the
provision of a service by the CBSA. The Tribunal held that Officer Demers’
conduct and his responses to Ms. Davis “were factors
that [the Tribunal considered] as being a form of differential treatment”.
The Tribunal also found that Officer Demers’ statements to Ms. Davis appeared
to be “unjustified, even aggressive, and defiant”.
[23]
With respect to the third branch, the Tribunal
had “no doubt” that Ms. Davis’ status as an
Aboriginal person was a factor in the adverse impact she experienced. The
Tribunal found that “all of the responses”
provided by Officer Demers were prompted by Ms. Davis’ “provocation
relating to her Aboriginal status and to the territorial assertions she made to
Officer Demers”. The Tribunal found that “Officer
Demers overreacted and provided responses that indicated behaviour that was
marked by racist stereotyping”. The Tribunal therefore concluded that a prima
facie case of discrimination had been established.
[24]
The Tribunal considered whether a comparative
test should be applied by taking into account Officer Demers’ conduct if he had
been confronted by a white person exhibiting the same behaviour. The Tribunal
concluded that a comparative analysis was not necessary: “A simple review of Officer Demers’ conduct, in light of his
attitude in general, as well as the responses he provided to [Ms. Davis] are sufficient
for me to recognize that Officer Demers acted, even unconsciously, based on
racial stereotype.”
[25]
The Attorney General argues that the Tribunal’s
decision is unreasonable for three reasons: (i) the aspects of Officer Demers’
conduct identified by the Tribunal did not support a finding of racial
discrimination, were unconnected to racial stereotyping, and were inconsistent
with the evidentiary record; (ii) the Tribunal’s finding that Officer Demers
engaged in discrimination because he “overreacted”
and failed to “maintain control” over Ms. Davis
was unreasonable; and (iii) the Tribunal failed to consider whether racial
stereotyping or prejudice provided the most probable explanation for Officer
Demers’ reaction to Ms. Davis’ provocation.
[26]
According to the Commission, “[a]t issue in this case is the degree of deference to be
paid to certain targeted findings of fact, and mixed fact and law, reached by
the specialized [Tribunal] after a lengthy hearing.” The Tribunal’s
hearing lasted 49 days. It heard from 22 witnesses. Unlike this Court, the
Tribunal had the benefit of hearing from Officer Demers directly and could
assess his demeanour. I therefore agree with the Commission that deference is a
central consideration in this application for judicial review. In the words of
the Federal Court of Appeal in Delios v Canada (Attorney General), 2015
FCA 117 at paragraph 28:
Under the reasonableness standard, we do not
develop our own view of the matter and then apply it to the administrator’s
decision, finding any inconsistency to be unreasonable. […] That is nothing
more than the court developing, asserting and enforcing its own view of the
matter – correctness review.
[27]
Nevertheless, I agree with the Attorney General
that the record does not support the Tribunal’s finding that Officer Demers
questioned Ms. Davis about what job she could hold, implying that she was
either incompetent or lazy. Officer Demers testified that he simply asked Ms.
Davis where she worked. This is a routine inquiry at border crossings. The Tribunal
does not appear to have considered Officer Demers’ explanation. Nor did it
provide a basis for rejecting it.
[28]
The Attorney General says that the only aspect
of Officer Demers’ conduct that might conceivably perpetuate a negative stereotype
about Aboriginal people was the unsupported finding that he questioned Ms.
Davis about what job she could hold. I disagree.
[29]
In my view, Officer Demers’ interaction with Ms.
Davis must be assessed in the unique context of the border crossing at Cornwall
Island. Officer Demers knew that Ms. Davis was a member of the Akwesasne First
Nation, and that there was on ongoing dispute between the First Nation and the
Government of Canada regarding the land on which the border crossing stood. He
had been given no training regarding the culture and traditions of Aboriginal
communities. He admitted that he raised his voice and invoked the authority of
his badge in an attempt to exercise control over Ms. Davis. He responded to Ms.
Davis’ assertion that he was trespassing on Akwesasne land by saying that they
were on the “the property of Canada Customs”.
The last of these statements, in particular, was a clear reference to Ms.
Davis’ Aboriginal status.
[30]
More generally, it was open to the Tribunal to
base its finding of discrimination on circumstantial evidence, recognizing that
stereotypes “exist, consciously or unconsciously,
voluntarily or even involuntarily and that it is through a careful analysis of
the evidence that the decision-maker must be able to determine whether there
are subtle scents of discrimination” (Tribunal’s Decision, para 203).
[31]
It is true that the Tribunal held Officer Demers
to a very high standard of conduct. He was subjected to extreme profanity and
verbal abuse by Ms. Davis. This was acknowledged by the Tribunal. However, the
Tribunal also noted that another CBSA officer was subjected to verbal abuse
from Ms. Davis, but responded in an “exemplary”
manner.
[32]
Ms. Davis’ behaviour at the Cornwall Island
border crossing on November 18, 2005 presented a serious challenge to all CBSA
officers who encountered her that day. The CBSA’s Code of Ethics and Conduct
recognizes, particularly for customs officers responsible for enforcement, that
it will sometimes be necessary to overcome “an
obstinate lack of cooperation with a determined, persistent and professional
stance.” The Tribunal’s conclusion that Officer Demers failed to meet
this standard, and that his conduct resulted, if only unconsciously, from
racial stereotyping, falls within the range of possible, acceptable outcomes.
B.
Were the remedies ordered by the Tribunal
reasonable and procedurally fair?
[33]
The Tribunal ordered the CBSA to do the
following:
(a) take steps to ensure that its current Code of Conduct
contains a specific statement to the effect that the CHRA prohibits
Border Service Officers (BSOs) from discriminating on the basis of prohibited
grounds when processing travelers seeking admission to Canada;
(b) provide BSOs working at the Cornwall border crossing with
training material regarding the range of different perspectives within the
Akwesasne community, and within the CBSA itself, regarding the Warrior Society,
and/or others in the Akwesasne community who may be recognized as Keepers of
the Peace;
(c) develop and implement a policy or directive that specifically
prohibits all forms of race-based discrimination under the CHRA, including
racial profiling;
(d) prepare training, separate from the existing on-line
Diversity and Race Relations module, that includes discussions of the new
policy or directive on race-based discrimination, as well as current case law
concerning the phenomenon of racial profiling;
(e) retain independent consultants with appropriate expertise
with respect to the above noted matters to assist in the preparation of the
required materials, policies or directives; and
(f) ensure that within a reasonable period of time, (i) all
BSOs have been provided with the training mentioned above, (ii) adequate
measures have been put into place to ensure the training is provided to new
recruits, and is refreshed periodically as appropriate, and (iii) the CBSA
provides confirmation to Ms. Davis and the Commission that these steps have
been completed.
[34]
All of these remedies were proposed by the
Commission, and were adopted by the Tribunal without independent analysis. The
Tribunal ordered one additional remedy:
[…] no operation of
the same type as or similar to that which was conducted on November 18, 2005,
shall be conducted without the direct participation of the Akwesasne Mohawk
Police Service or any other Aboriginal police force elsewhere in the country.
[35]
The Attorney General was given no notice of the
additional remedy, and no opportunity to address its rational connection to the
Tribunal’s finding of discrimination or its practical implications for the CBSA.
[36]
The Commission has chosen not to defend the
remedy that pertains to the provision of training on different perspectives
regarding the Warrior Society or others in the Akwesasne community who may be
recognized as Keepers of the Peace. Nor does it defend the final remedy
pertaining to the direct participation of the Akwesasne Mohawk Police Service
or any other Aboriginal police force in similar operations throughout the
country.
[37]
Paragraph 53(2)(a) of the CHRA gives the
Tribunal authority to take measures, in consultation with the Commission, to
redress a discriminatory practice or to prevent the same or a similar practice
from occurring in the future. Justice Evans held in Public Service Alliance
at paragraph 301 that “[s]pecialized tribunals are owed
a particularly high degree of deference in their exercise of a broad statutory
discretion to fashion an appropriate remedy”. Nevertheless, the remedies
awarded must have a rational connection, or “causal
nexus”, to the complaint (Canada (Attorney General) v Johnstone,
2014 FCA 110 at para 113).
[38]
Despite the lack of independent analysis, I am
satisfied that remedies (a), (c), (d), (e) and (f) ordered by the Tribunal are
rationally connected to the single aspect of Ms. Davis’ complaint that was
upheld. The CBSA initially disputed that the CHRA applied to customs
inspections at border crossings. This Court and the Federal Court of Appeal
have since confirmed that it does. A lack of training was identified by the
Tribunal as a contributing factor to the discriminatory conduct in issue.
[39]
Remedy (b) was proposed by the Commission when
all aspects of Ms. Davis’ wide-ranging complaint were still in dispute. It is
unnecessary in these reasons to review the role of “the
Warrior Society, and/or others in the Akwesasne community who may be recognized
as Keepers of the Peace” in the events that took place at the Cornwall
Island border crossing on November 18, 2005. This aspect of Ms. Davis’
complaint was dismissed by the Tribunal, and there is no rational connection
between remedy (b) and the single aspect of the complaint that was ultimately
upheld. This remedy must therefore be set aside.
[40]
There is no dispute that the Tribunal ordered
the final remedy pertaining to the direct participation of the Akwesasne Mohawk
Police Service and other Aboriginal police forces in similar operations
throughout the country without notice to the Attorney General. The implications
of this remedy are potentially very broad. The Attorney General was given no
opportunity to adduce evidence or make submissions regarding this remedy, and
was therefore denied procedural fairness (Knight v Indian Head School
Division No 19, [1990] 1 S.C.R. 653 at para 24). In addition, I am not
persuaded that there is a causal nexus between the final remedy ordered by the
Tribunal and the single aspect of the complaint that was ultimately upheld.
This remedy must therefore also be set aside.
VI.
Conclusion
[41]
The application for judicial review is allowed
in part. The following remedies ordered by the Tribunal are set aside:
a)
provide Border Service Officers working at the
Cornwall border crossing with training material regarding the range of
different perspectives within the Akwesasne community, and within the CBSA
itself, regarding the Warrior Society, and/or others in the Akwesasne community
who may be recognized as Keepers of the Peace; and
b)
no operation of the same type as or similar to
that which was conducted on November 18, 2005, shall be conducted without the
direct participation of the Akwesasne Mohawk Police Service or any other Aboriginal
police force elsewhere in the country.
[42]
Because success on the application for judicial
review is divided, no costs are payable to any party.
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