Date: 20070907
Docket: T-1687-06
Citation: 2007 FC 887
Ottawa, Ontario, September 7, 2007
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
DUANE DAVID
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Duane David is a Muslim inmate who is
incarcerated at the Joyceville Institution in Kingston, Ontario. He complained
to the Canadian Human Rights Commission (Commission) that the Correctional
Service of Canada (CSC) had implemented a policy that "resulted in the
deprivation of my right to equal treatment based on my religion".
[2] The
specifics of Mr. David's complaint were that on every Wednesday the Joyceville
Institution provides a breakfast to inmates that consists of three pieces of
bacon, two eggs, three slices of toast, jam, ketchup, milk, coffee, juice and
cereal. Muslim inmates who follow a halal diet receive all of these items,
except the bacon. Mr. David had requested that he be provided with a
substitute for the three pieces of bacon, but the request was refused by the
institution.
[3] The
refusal to provide a substitute or alternative to bacon was the subject of an
internal grievance brought by Mr. David within the Joyceville Institution. The
grievance was denied at all levels.
[4] Upon
completion of the grievance procedure, the Commission proceeded to investigate
Mr. David's complaint. An investigator prepared a report that, pursuant to
paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C.
1985, c. H-6, recommended to the Commission that it take no further proceedings
because "the allegations of discrimination have substantially been
redressed by the other procedure". The Commission accepted that
recommendation, as evidenced by a letter from the Commission's Secretary which
repeated, verbatim, the recommendation of the investigator. Mr. David brings
this application for judicial review of that decision.
THE INVESTIGATOR’S REPORT
[5] When
the Commission adopts an investigator's recommendation but provides no reasons,
the investigator’s report constitutes the Commission’s reasons. See: Sketchley
v. Canada (Attorney General), [2006] 3 F.C.R. 392 at
paragraph 37. I turn, therefore, to the investigator's report.
[6] In
order to determine whether it was in the public interest to proceed with the
complaint, the investigator considered the following:
- whether there were any human rights issues that were not
dealt with through the grievance process;
- whether the remedy obtained through the grievance process was
sufficient; and
- the positions of the parties as to why the investigation should
or should not proceed.
[7] With
respect to the first factor, the investigator noted that there was one
outstanding human rights issue, namely whether any obligation to provide a
substitute for bacon on Wednesday mornings existed. As to the second factor,
the investigator correctly observed that no remedy was obtained through the
grievance procedure because the grievance was denied. Finally, with respect to
the positions of the parties, the investigator set out the position of the
respondent CSC, as follows:
13. The
respondent disagrees that there is any need to investigate this matter further.
The respondent’s position remains that measures for accommodating differing
dietary needs, including the halal diet offered to inmates at Joyceville
Institution, are based on guidelines developed by the Canadian Human Rights
Commission. The respondent says the halal menu is comparable in variety
and nutritional value to the regular menu, and in some instances more
nutritious than the regular menu. The respondent says it provides a meat
substitute on Wednesday mornings to Muslim inmates who adhere to a halal
diet. The respondent agrees that not offering a substitute for meat to those
who adhere to a halal diet would be discriminatory; the respondent
asserts, however, that there is no requirement to provide an offender with a
meat product as a specific replacement for bacon. The respondent asserts that
menu planning in its institutions is based on Canada’s Food Guide to Healthy
Eating, and that there is no specific requirement to replace bacon in the
regular meals on Wednesday mornings. The respondent maintains that the
nutritional value of bacon is negligible, and that as the halal diet is
comparable in variety and nutritional value to the regular diet, the respondent
is fulfilling its duty to accommodate religious difference. The halal diet
guidelines specify that on days where a meat product is served to inmates
following the regular menu, those inmates following the halal diet will
receive a halal meat product, except where the meat product on the
regular menu is bacon. On those occasions, inmates who do not eat bacon are
provided with two eggs, ketchup, milk, coffee, juice, cereal, three slices of
toast and jam.
[8] Mr.
David's position was set out in the following terms:
14. The
complainant maintains that not being given his choice of meat product is
unfair, inequitable and discriminatory.
[9] The
investigator then provided the following analysis:
17. The
issue in the present complaint is whether the provision of another alternative
to a meat product that meets the nutritional standards accorded to all inmates,
and which is consistent with the restrictions placed upon the complainant’s
diet by his religious convictions, but which does not accord with the
complainant’s personal preference, constitutes a failure to accommodate the
complainant’s religious convictions. Given that there appears to be an
alternative source of protein offered to Muslim inmates who do not eat bacon,
and that the variety and value of meals offered to Muslim inmates appears
comparable to that of the meals offered to non-Muslim inmates, the evidence
does not support that the complainant’s preference for halal sausage is
the best way to accommodate his religious requirements. Furthermore, while the
complainant later altered his request to include another substitute for a meat
product, the choices he suggests as alternatives for bacon or his original
request for halal sausage do not appear to be such as may be required by
his religious convictions, but are again his personal preference. The evidence
does not support that the substitutions offered by the respondent are
inappropriate in all the circumstances.
THE ISSUES RAISED BY MR. DAVID
[10] Mr.
David raises three issues. He says that the Commission:
1. erred by finding that his human rights complaint had been
substantially redressed through the grievance process;
2. failed to give adequate reasons for its finding that his
complaint was substantially redressed; and
3. failed to
conduct a thorough and independent investigation.
STANDARD OF REVIEW
[11] In
order to determine the appropriate standard of review, the Court must first
identify the question or questions in dispute.
[12] The
first issue is whether the Commission erred in finding that Mr. David's
complaint had been substantially redressed. This issue is very similar to one
considered by this Court in Loyer v. Air Canada, 2006 FC 1172. In that
case, the question was whether human rights issues had been dealt with through
an arbitration process. After conducting a pragmatic and functional analysis,
my colleague Madam Justice Mactavish concluded that the standard of review to
be applied was reasonableness. I agree with, and adopt, her analysis.
[13] No
pragmatic and functional analysis is required in respect of the second and
third issues. Both issues raise questions of procedural fairness, which are to
be reviewed as questions of law.
DISCUSSION
(i) Did the Commission reasonably
conclude that Mr. David's human rights complaint had been substantially
redressed?
[14] Missing
from the investigator's report was the following:
1. CSC had, on the basis of advice received from the Commission,
established Religious Diets-General Guidelines that required that a “religious
diet must compare in quality and variety to meals served to the general
population, and be served according to a meal plan that is balanced and
nutritionally adequate [...]”.
2. The Project Officer, Human Rights Division, at CSC National
Headquarters had advised in the course of the grievance process that:
[…] a meat substitute on
Wednesday mornings should be provided to offenders who adhere to the halal
diet. If the general population receives bacon on Wednesday mornings and
offenders who adhere to the halal diet are not offered any meat substitutes,
this is discrimination. Muslims at Joyceville who adhere to the Halal diet and
do not receive a meat substitute on Wednesday mornings are being discriminated
against because there [sic] diets must be comparable in quality and
variety to meals served to the general population according to CHRC.
3. The Chief of Food Services at the Joyceville Institution had
advised in the course of the grievance process that a bacon substitute was not
provided on Wednesday mornings because it was not within his budget resources.
4. The Director of Food Services had provided advice in the
grievance process that “I do agree with the fact that if from a human rights
perspective, this is a discriminatory practice, then the practices within CSC
will need to change and we will need to either offer an alternative to bacon
for the Halal diet or withdraw the provision of bacon entirely for the general
population”.
5. The Wednesday halal breakfast was nutritionally equivalent to
that served to the general population. While, in the words of the Religious
Diets-General Guidelines, that could well mean that the meals compare in terms
of quality, the investigator did not explain how a meal that is a subset of
another properly compares in terms of variety to the full meal.
[15] These
are, in my view, significant omissions that, if not rectified, would likely
have vitiated the decision. See: Canadian Broadcasting Corporation v. Canada
(Human Rights Commission), [1993] F.C.J. No. 1334 (T.D.). However, Mr.
David was given the investigator's report and made a response to the Commission
that substantially rectified the omissions. This Court has held that only
where complainants are unable to rectify omissions in an investigator's report
do such omissions warrant judicial review. See: Slattery v. Canada
(Human Rights Commission), [1994] 2 F.C. 574 at paragraph 57 (T.D.).
[16] However,
the inquiry does not end there. For the reasons of the Commission to withstand
review on the standard of reasonableness, they must stand up to a somewhat
probing examination. See: Canada (Director of Investigation and
Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at
paragraph 56. The question to be asked is whether the reasons, when taken as a
whole, support the decision. See: Law Society of New Brunswick
v. Ryan, [2003] 1 S.C.R. 247 at paragraph 47.
[17] The
matters raised by Mr. David in response to the investigator's report were
material to the Commission's conclusion that the allegations of discrimination
had been substantially redressed by the grievance procedure. Indeed, they
pointed to the opposite conclusion. In my view, in order for the Commission's
reasons to withstand a somewhat probing examination, they would have had to address
the material information that pointed to the conclusion that the allegations of
discrimination had not been addressed. Given the Commission's failure to do so,
I find that its reasons, when taken as a whole, do not withstand a somewhat
probing examination. They do not provide a tenable explanation for the
Commission’s ultimate conclusion. The application for judicial review is
therefore allowed, and it is not necessary to consider the other issues raised
by Mr. David.
[18] There
is no reason why costs should not follow the event. Counsel for Mr. David
submitted that costs in the range of $2,000.00 to $2,500.00 would be
reasonable. Counsel for the Attorney General submitted that reasonable costs
would be in the range of $1,500.00 to $2,000.00. On the base of these
submissions, costs are fixed in the amount of $2,000.00 inclusive of
disbursements and GST.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. The application for judicial review is allowed and the decision
of the Commission dated April 6, 2006 is hereby set aside.
2. The matter is remitted for redetermination by the Commission
on the basis of an investigation to be conducted by a different investigator.
3. The respondent shall pay to the applicant costs fixed in the
amount of $2,000.00, inclusive of disbursements and GST.
“Eleanor
R. Dawson”
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