Date: 20051125
Docket: T-1054-04
Citation:
2005 FC 1600
Ottawa, Ontario, November 25,
2005
PRESENT:
THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
MOSTAFA
BEN KIRANE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
GAUTHIER, J.
[1]
Mr.
Ben Kirane asks the Court to set aside the decision of the Canadian Human
Rights Commission dismissing his complaint against the Canadian Security
Information Service (CSIS) on the following ground:
[TRANSLATION]
The evidence does not support
the complainant’s allegation that the annual report by the repondent
discriminates against the Sunni Muslim community.
[2]
In
his complaint of July 3, 2003, Mr. Ben Kirane stated, inter alia, the
following:
[TRANSLATION]
I believe that I have been discriminated
against on the grounds of my religion . . . . I read an article . . . (in daily
newspaper La Presse) entitled “Le Canada, cible de choix des terroristes,” which
was defended by Wayne Easter, the Solicitor General, in the House of Commons in
Ottawa. However, the linking of
“terrorists” with “Islamic” and “Sunni” was intolerable. To single out
“Sunnis” discriminates in a way that deprives them of their right to equality
and peaceful enjoyment . . . . These terms are used in CSIS’ annual report,
which seems discriminatory to me in a way that could and indeed does spread
hatred against the Muslim community and misleads Canadian society . . . . I
believe that by targeting “terrorists,” the article (Report) also targets the
“Muslims” appearing in the same article by linking the two groups and in turn
targets Islam, the religion to which I belong.
[3]
It
should be noted that, before the Commission delivered its decision, Mr. Ben
Kirane had not read the CSIS annual report for 2002, although he has since done
so.
[4]
In
her report dated December 16, 2003, the CHRC investigator noted that section
12 of the Canadian Security Intelligence Service Act, R.S. 1985, c. C‑23, (CSISA) defines the principal function of
CSIS in terms of investigation and states that CSIS shall report to the
Government of Canada respecting activities that may on reasonable grounds be
suspected of constituting threats to the security of Canada.
[5]
The
investigator also stated that, in her opinion, a reasonable person reading the
report (objective standard) would not think that the wording expressed or
implied discriminatory practices against the Sunni Muslim community to which
Mr. Ben Kirane belongs. She recommended that the complaint be dismissed.
[6]
The
investigation report was submitted to the applicant to give him an opportunity
to file additional submissions with the Commission before it made its
decision. He exercised this right and submitted his comments on January 19,
2003.
[7]
In
his letter, Mr. Ben Kirane stated that his complaint was made under section 13
of the Canadian Human Rights Act, R.S. 1985, c. H-6 (the Act),
not under section 12, as stated by the investigator (text appended). He also
noted that the ground of discrimination on which he relied was religion.
[8]
Essentially,
Mr. Ben Kirane argued before the Commission that the very wording of the CSIS
report, in which the extremist terms “Islamic” and “Sunni” were juxtaposed in
the context of a terrorist threat, certainly appeared [TRANSLATION] “to
intentionally express or suggest discrimination against the Islamic/Sunni
Muslim community”. Therefore, the investigator’s reading of the CSIS report
was, in his opinion, flawed.
[9]
Basing
its decision on paragraph 44(3)(b) of the Act (text
appended), the Commission dismissed the applicant’s complaint, as I stated
above.
[10]
In
his first Memorandum of Facts and Law, Mr. Ben Kirane, who represented himself,
did not raise a reviewable error by the Commission.
[11]
In
his supplementary memorandum and at the hearing, the applicant raised the following
errors:
(i)
the
Commission was unable to consider the annual report containing the
discriminatory comments, because it had not been filed in evidence;
(ii)
the Commission’s finding that the report did not contain discriminatory
comments is unreasonable, since Islam preaches the middle path. Therefore,
terrorism could not be Islamic, and an extremist could not be a Sunni;
(iii)
although
it is true that section 12 of the Act covers the gist of his complaint, the
Commission should still have considered section 13 of the Act, since the
presentation of the CSIS report to the government was broadcast, and the
contents of the presentation by Mr. Easter were definitely communicated by
telephone to La Presse, which discussed them in its article of June 6, 2003; and
(iv)
the
Commission’s
investigation was incomplete, since it held no hearings.
[12]
The
applicant also argued that he had been more severely discriminated against on
the basis of his religion since publication of the report and had observed the
same effect on the Sunni Muslim community in general.
ANALYSIS
[13]
As
the Federal Court of Appeal noted recently in Sheradan Gardner v. Attorney
General of Canada (Canadian Human Rights Commission), 2005 FCA 284, [2005]
F.C.J. No. 1442 (QL) (F.C.A.), the standard of review applicable to decisions
by the Commission rejecting a complaint under paragraph 44(3)(b) of
the Act is reasonableness simpliciter.
[14]
As
was explained to the applicant at the hearing, this does not mean that the
Court can simply substitute its own opinion or assessment of the evidence on
record for that of the Commission. A decision is unreasonable only if none of
the reasons that are sufficient to support it can stand up to a somewhat
probing examination (Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247, at paragraph 55).
[15]
Furthermore,
if a rule of natural justice has been breached, the Court must intervene and
overturn the decision (Ha v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 74 (QL) (F.C.A.),
at paragraphs 42-45).
[16]
In
its review, the Court must examine all the documents considered by the
Commission, including the report by the investigator who examined the article
in La Presse quoted by the applicant as well as the CSIS’ annual report
for 2002.
[17]
As
the applicant acknowledged in the hearing, it is clear that the Commission and
the investigator considered the CSIS annual report for 2002 before making their
decision.
[18]
Although
the applicant did not file that document as evidence, the Commission had a duty
to obtain it, since the article from La Presse was only a secondary
source and, as the investigator noted, the Commission had no jurisdiction to
entertain a complaint relating to the print media.
[21]
From
a reading of the Commission’s decision, it is clear that the Commission
considered the additional comments submitted by the applicant before dismissing
his complaint. Therefore, the Court is satisfied that, under the
circumstances, the rules of natural justice were not breached.
[22]
Moreover,
the Commission did not commit a reviewable error when it failed to consider as
part of the investigation whether, since the presentation of the CSIS report,
the applicant had been discriminated against in a way that could be attributed
the report’s dissemination. In fact, Mr. Ben Kirane never referred to such
discriminatory practices in his complaint or in his submissions to the
Commission. There is no evidence that he referred to such discriminatory
practices in his communications with the investigator.
[23]
On
judicial review, the Court cannot consider evidence that was not before the
decision maker.
[24]
In
this respect, it should also be noted that there is no indication that the
applicant explained to the Commission why the juxtaposition of the terms
“extremists” or “terrorists” with “Islamic” or “Sunni” was in itself contrary
to the principles of Islam.
[25]
At
the hearing, the parties agreed that the most relevant excerpts from the CSIS
report were the following:
Terrorism in Canada can be divided into
roughly four categories: religious extremism, with various Sunni Islamic
groups being the most serious threat at present; state-sponsored terrorism;
secessionist violence, which encompasses Sikh extremism, and separatist
movements in Sri Lanka, Turkey, Ireland and the Middle East; and domestic
extremism, including some anti-abortion, animal rights, anti-globalization and
environmental groups, a small but receptive audience for militia messages
emanating from the United States, and white supremacists).
. . .
Sunni Islamic extremism remains the primary focus of
the CSIS Counter Terrorism program. The September 11, 2001 attacks on the United States clearly demonstrated the
threat that Sunni Islamic terrorist networks pose.
[Emphasis added.]
[26]
The
Court acknowledges the applicant’s bona fides and personal conviction
when he states that these passages target the Sunni community in general,
rather than terrorists. However, the Court cannot conclude on that basis alone
that the Commission has committed a reviewable error.
[28]
In
any case, the Commission noted in its decision that it had considered all of
the applicant’s comments and thus his allegation that section 13 of the Act was
applicable.
[29]
The
Court is satisfied that the Commission’s decision to dismiss the complaint
pursuant to that section was not unreasonable.
[30]
Having
thoroughly reviewed the file, the Court must conclude that the decision is
reasonable.
ORDER
THE COURT ORDERS that:
The
application is dismissed.
“Johanne Gauthier”
Certified true translation
Michael Palles
ANNEX A
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Canadian Human Rights Act
|
Loi canadienne sur les droits de la personne
|
|
12. It is a discriminatory practice to publish or display
before the public or to cause to be published or displayed before the public
any notice, sign, symbol, emblem or other representation that
(a) expresses
or implies discrimination or an intention to discriminate, or
(b) incites
or is calculated to incite others to discriminate
if the discrimination expressed or
implied, intended to be expressed or implied or incited or calculated to be
incited would otherwise, if engaged in, be a discriminatory practice
described in any of sections 5 to 11 or in section 14.
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12.
Constitue un acte discriminatoire le fait de publier ou d'exposer en
public, ou de faire publier ou exposer en public des affiches, des écriteaux,
des insignes, des emblèmes, des symboles ou autres représentations qui, selon
le cas :
a)
expriment ou suggèrent des actes discriminatoires au sens des articles 5 à 11
ou de l'article 14 ou des intentions de commettre de tels actes;
b) en
encouragent ou visent à en encourager l'accomplissement.
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13. (1) It is a discriminatory practice for a person or a
group of persons acting in concert to communicate telephonically or to cause
to be so communicated, repeatedly, in whole or in part by means of the
facilities of a telecommunication undertaking within the legislative
authority of Parliament, any matter that is likely to expose a person or
persons to hatred or contempt by reason of the fact that that person or those
persons are identifiable on the basis of a prohibited ground of
discrimination.
(2) For greater certainty, subsection (1) applies in
respect of a matter that is communicated by means of a computer or a group of
interconnected or related computers, including the Internet, or any similar
means of communication, but does not apply in respect of a matter that is
communicated in whole or in part by means of the facilities of a broadcasting
undertaking.
(3) For
the purposes of this section, no owner or operator of a telecommunication
undertaking communicates or causes to be communicated any matter described in
subsection (1) by reason only that the facilities of a telecommunication
undertaking owned or operated by that person are used by other persons for
the transmission of that matter.
|
13. (1) Constitue un acte discriminatoire le fait, pour une
personne ou un groupe de personnes agissant d'un commun accord, d'utiliser ou
de faire utiliser un téléphone de façon répétée en recourant ou en faisant
recourir aux services d'une entreprise de télécommunication relevant de la
compétence du Parlement pour aborder ou faire aborder des questions
susceptibles d'exposer à la haine ou au mépris des personnes appartenant à un
groupe identifiable sur la base des critères énoncés à l'article 3.
(2) Il demeure entendu que le paragraphe (1) s'applique à
l'utilisation d'un ordinateur, d'un ensemble d'ordinateurs connectés ou
reliés les uns aux autres, notamment d'Internet, ou de tout autre moyen de
communication semblable mais qu'il ne s'applique pas dans les cas où les
services d'une entreprise de radiodiffusion sont utilises.
(3) Pour
l'application du présent article, le propriétaire ou exploitant d'une
entreprise de télécommunication ne commet pas un acte discriminatoire du seul
fait que des tiers ont utilisé ses installations pour aborder des questions
visées au paragraphe (1).
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44 (3) On
receipt of a report referred to in subsection (1), the Commission
.
. .
(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, or
(ii) that
the complaint should be dismissed on any ground mentioned in paragraphs 41(c)
to (e).
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44 (3) Sur
réception du rapport d'enquête prévu au paragraphe (1), la Commission :
. .
.
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,
(ii) soit
que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c)
à e).
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Canadian Security Intelligence Service Act
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Loi sur le service canadien du renseignement de sécurité
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Duties and Functions of Service
12. The
Service shall collect, by investigation or otherwise, to the extent that it
is strictly necessary, and analyse and retain information and intelligence
respecting activities that may on reasonable grounds be suspected of
constituting threats to the security of Canada and, in relation thereto, shall report to and advise the
Government of Canada.
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Fonctions du Service
12. Le Service recueille, au moyen d'enquêtes ou autrement, dans la
mesure strictement nécessaire, et analyse et conserve les informations et
renseignements sur les activités dont il existe des motifs raisonnables de
soupçonner qu'elles constituent des menaces envers la sécurité du Canada; il
en fait rapport au gouvernement du Canada et le conseille à cet égard.
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