Date: 20071025
Docket: T-190-05
Citation: 2007 FC 1100
TORONTO, Ontario, October 25, 2007
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
PAUL
RICHARDS
Applicant
and
MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review regarding a decision of the Canadian
Human Rights Commission (the Commission), dated December 29, 2004, which
dismissed a complaint filed by Paul Richards (the applicant) against the Canadian
Border Services Agency (CBSA). The supervision and control of the CBSA is part
of the portfolio of the Minister of Public Safety and Emergency Preparedness,
the respondent in these proceedings.
BACKGROUND
[2]
The
applicant is a Black, Canadian citizen, Jamaican-born male who wears his hair
in dreadlocks. He is employed with the Ontario Human Rights Commission.
[3]
On
July 8, 2003, the applicant, returning from vacation in Jamaica, arrived at
Lester B. Pearson International Airport in Toronto. The applicant
reported to Customs for clearance. Approximately 900 people cleared customs at
the same time as the applicant.
[4]
The
applicant was questioned three times: once by a primary inspector, once by a
roving officer, and once by a secondary officer. He was asked to show the
contents of his carry-on bag and to answer questions about his trip, including:
What was his purpose for going to Jamaica, business or pleasure?
What did he do there? Who did he stay with? How long did he stay with them? Was
this the only place he stayed? Where did he travel to in Jamaica? Who did he
visit? Was he “gainfully employed”? The applicant alleges that the officer at the
secondary inspection scrutinized the applicant’s unopened bottle of rum as if looking
for drugs in the bottle. The applicant also claims that the roving and
secondary officers ceased questioning the applicant and inspecting his
documents and luggage once he advised them that he worked for the Ontario Human
Rights Commission.
[5]
On
December 9, 2003, some five months after the incident, the applicant filed a
human rights complaint with the Canadian Human Rights Commission, alleging that
the CBSA officers racially profiled and discriminated against him on the basis
of his race, colour, sex, national or ethnic origin and perceived religion. According
to the applicant, he was singled out for greater or additional scrutiny:
For the officers he looked the part of a
suspect – he fit the profile of a drug smuggler as a Black man with dreadlocks
coming from a “source” country. The officer’s actions were based on
stereotypical assumptions about the criminality of African Canadian males…and
about his perceived religion or lifestyle (Rastafarianism) with drugs being
part of that lifestyle. To single out and treat someone differently because of
how they look is racial profiling.
(para. 10, Applicant’s Memorandum, page
542, Applicant’s Record)
DECISION UNDER REVIEW
[6]
The
Commission appointed Mr. Dale Akerstrom to investigate the complaint. He issued
a report dated September 21, 2004 and recommended that “pursuant to paragraph
44(3)(b) of the Canadian Human Rights Act…the Commission dismiss the
complaint, because the information gathered does not support the allegation”
(para. 22, Investigator’s Report, page 84, Applicant’s Record). The
investigator made the following conclusions:
a.
Unusual
scrutiny – The scrutiny the complainant received was not unusual. “It is clear
that Customs officers have a duty to ensure that banned substances and
undeclared items are not brought into Canada, and that the Customs Act
obligates a traveller to answer ‘any questions’ asked by the officer in the performance
of his or her duties”. Although the complainant was of the opinion that the
questioning by CBSA officers was intrusive or unwarranted, “no comparative
information was obtained…to indicate that this was an unusually-detailed or
unreasonably lengthy examination”.
b.
Unreasonable
scrutiny – It was not unreasonable for the complainant to be asked questions
and be required to show the contents of his bag by the officers in the
performance of their duties. “It would seem reasonable that a Customs officer
would have to satisfy himself that a person who appears to be an adherent of a
religion that has as one of its practices the use of an illegal substance is
not, in fact, bringing that illegal substance with him. Contrary to the
complainant’s statement that the questions they asked were about his
‘character,’ the complainant’s own information indicates that the questions
related to his travel itinerary and occupation, not his innate
characteristics”.
c.
Unusual,
unfair scrutiny relating to a prohibited ground – “The information gathered
does not support that the complainant was differentially, adversely treated,
and therefore there is no cause to determine if the reason for the treatment
was related to a prohibited ground”. The information does not support the
finding that the complainant’s treatment was unusual or unreasonable, therefore
the question “whether or not that unusual, unfair scrutiny was because of his
race, colour, national or ethnic origin, or perceived religion” is moot.
(See paragraph19-21 of the Investigator’s
Report found in the Respondent’s Record at page 83.)
[7]
On
December 29, 2004, the Commission adopted the recommendations of the
investigator and dismissed the applicant’s complaint on the ground that “the
information gathered does not support the allegation” (Letter from Lucie
Veillette, Secretary to the Commission, page 478, Applicant’s Record).
ISSUES
[8]
The
respondent raised a preliminary issue concerning the admissibility of the Minutes
of Settlement from Pieters v. Department of National Revenue (Canada Customs and
Revenue Agency), (2002), File No. T650-3801 (CHRT), which the applicant
included in his record in support of his application for judicial review. The respondent
submits that, although the issue of the settlement was raised by the applicant
at the Commission, the settlement document itself was not before the Commission
when it rendered its decision. According to the respondent, this document is
not admissible evidence on this judicial review, since it was not part of the
certified Rule 318 Record filed in this proceeding and is a confidential
settlement document negotiated between parties unrelated to this proceeding.
[9]
It
is a well established principle that applications for judicial review are
conducted on the basis of the material that was before the administrative
decision-maker. However, affidavit evidence may be admitted on issues of
procedural fairness and jurisdiction (Assn. of Architects (Ont.) v. Assn. of
Architectural Technologists of Ontario (2002), 215
D.L.R. (4th) 550 (F.C.A.), leave to appeal to S.C.C. refused,
(2003), 23 C.P.R. (4th) vii).
[10]
It
is unclear whether the Minutes of Settlement were properly introduced as evidence
before the Commission. In the applicant’s Response to the Investigator’s
Report, he mentioned the settlement between Pieters and Canada Customs Revenue
Agency without any specific reference to the file number, the date of the
settlement, or any other information about the settlement that would indicate
to the Commission, with clarity, the settlement agreement to which he was
referring (Letter from applicant to Mr. Harry Monk, October 14, 2004, page
490, Applicant’s Record). More importantly, although the applicant submitted
copies of other documents that he referred to in his Letter of Response, the
applicant did not provide the Commission with a copy of the Minutes of
Settlement. Therefore, it is difficult to ascertain whether the Minutes of
Settlement were properly introduced as evidence before the Commission and were
therefore before the original decision-maker. Another reference to the
settlement agreement appeared in a letter, dated October 20, 2004 from the
applicant’s counsel, Mr. James A. Girvin, to Mr. Harry Monk, the Director BC
and Yukon Region of the Canadian human Rights Commission in which he refers to
the settlement as a complaint relating to racial profiling settled by Canada
Customs in 2002 (see Applicant’s Record, page 476). Although this letter goes
on to outline specific terms in the settlement agreement, it is not known
whether it is the Canada Customs agreement with Pieters that is referred to or
some other agreement between CBSA and another individual. Regardless, this
second reference to the agreement appeared in a letter that was not included in
the record as it was received by the Commission after the submission deadline
and no extension was given (see Memorandum to File from Dale Akerstrom, October
20, 2004, page 523, Applicant’s Record). Thus, this reference to the settlement
agreement is irrelevant.
[11]
Despite
this uncertainty, the applicant has raised a question of procedural fairness
and has included this material in his record in support of arguments on that
issue. Thus, the Court would normally be inclined to accept the new material as
it relates to this matter. However, after scrutinizing the document more
closely, it is clear that it is a confidential settlement document between
two parties unrelated to these proceedings. The applicant was not involved
in the settlement and so he cannot rely on the terms of that settlement to
further his own case as each case is decided on its own facts. It is for all of
the above reasons that the Minutes of Settlement will not be given much weight on
this judicial review of the Commission’s decision.
[12]
I
am satisfied the issues in this case can be framed as follows:
1. What is the
appropriate standard of review?
2. Did the
Commission commit an error of law in making its decision to refer or reject the
applicant’s complaint during the screening process?
3. Did the
Commission breach the principles of procedural fairness by failing to
investigate the complaint in a neutral and thorough manner?
ANALYSIS
1. What is the standard
of review?
[13]
Where
the Commission makes a screening decision pursuant to section 44(3) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 [the “CHRA”]), adopts an
investigator’s recommendations, and provides no reasons or only brief reasons,
as in this application, the Courts have treated the Investigator’s Report as
constituting the Commission’s reasoning (Sketchley v. Canada (Attorney
General), [2006] 3 F.C.R. 392 at para. 37; Syndicat des
employés de production du Québec et de l’Acadie v. Canada (Human Rights
Commission), [1989] 2 S.C.R. 879 [SEPQA]). The investigator is not
someone independent of the Commission. Rather the investigator is an extension
of the Commission and prepares the report for the Commission. Thus, the reasons
in the Investigator’s Report are the subject of review in this application.
[14]
I
am satisfied the appropriate standard of review with respect to breaches of procedural
fairness is correctness (Ellis-Don Ltd. v. Ontario (Labour
Relations Board), [2001] 1 S.C.R. 221 at para. 65). No deference is owed to
the decision-maker when reviewing questions of this nature.
[15]
In
order to determine the appropriate standard of review for whether the
Commission committed
an error of law in its decision to refer or reject the applicant’s complaint
during the screening process, a pragmatic and functional analysis must be applied.
The presence or absence of a privative clause or
statutory right of appeal
[16]
The CHRA
contains neither a privative clause nor a statutory right of appeal. The
Supreme Court has indicated that a statute’s silence is neutral and does not
imply a high standard of scrutiny (Dr. Q. v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 27). Thus, the
first factor, the presence or absence of a privative clause, is neutral in this
case.
The expertise of the tribunal relative to that
of the reviewing court on the issue in question
[17]
The issue
here is the Commission’s decision to reject a complaint or refer it to
conciliation or to the Tribunal. This question directly engages the expertise
of the Commission in its fact-finding role with respect to human rights. As
this Court recognized in MacLean v. Marine Atlantic Inc., 2003 FC 1459
at para. 38, like a finding of discrimination, fact-finding in screening
complaints based on an investigation report is impregnated by facts, facts
which the Board of Inquiry is in the best position to evaluate. In this
context, the Commission’s expertise is superior to the courts, which suggests greater
deference on judicial review.
The purpose of the legislation and the provision
in particular
[18]
The
purpose of the CHRA is found in Section 2 of the Act:
The purpose of this Act is to extend the laws in Canada to
give effect, within the purview of matters coming within the legislative
authority of Parliament, to the principle that all individuals should have an
opportunity equal with other individuals to make for themselves the lives that
they are able and wish to have and to have their needs accommodated, consistent
with their duties and obligations as members of society, without being hindered
in or prevented from doing so by discriminatory practices based on race,
national or ethnic origin, colour, religion, age, sex, sexual orientation,
marital status, family status, disability or conviction for an offence for
which a pardon has been granted.
In carrying out its statutory purpose, Parliament
has given the Commission wide discretion to dismiss complaints where it is
satisfied that further inquiry is not warranted. As noted by the Federal Court of Appeal in Bell Canada v. Communications,
Energy and Paperworker’s Union of Canada (1998), [1999] 1 F.C. 113 (C.A.), Parliament
intended the Commission to enjoy a great degree of latitude when performing its
screening function on receipt of an investigation report. The language in
subsections 40(2) and 40(4) and sections 41 and 44 leaves no doubt that
Parliament did not want the Court to intervene lightly in the screening
decisions of the Commission. This factor suggests that deference be given to
the Commission’s decision.
The nature of the question – law, fact or mixed
law and fact
[19]
The
issue of whether the Commission committed an error of law in making its
decision to refer or reject the applicant’s complaint during the screening
process is a question of mixed fact and law. In making its decision to reject or refer
the complaint, the Commission assessed the information gathered by the investigator
and decided, pursuant to subsection 44(3) of the CHRA, that the evidence did
not support the allegations in the complaint. This final factor favours deference
on judicial review.
[20]
The
pragmatic and functional analysis indicates that the standard of review in
determining whether the Commission erred in law when making its decision to
refer or reject the applicant’s complaint during the screening process is reasonableness simpliciter.
2. Did the Commission commit an
error of law in making its decision to refer or reject the applicant’s
complaint during the screening process?
[21]
The applicant
submits that the investigator, and therefore the Commission, omitted and,
consequentially, did not apply the appropriate test for racial profiling and
discrimination. According to the applicant:
[t]he
legal analysis which the investigator was required to apply under the Act
is simply not addressed in the Investigator’s Report. Instead, the
investigator characterizes the issues as whether the Applicant received unusual
scrutiny by the Customs officers, whether the scrutiny was unfair and
unreasonable, and whether it was because of the pleaded prohibited grounds.
(para.
37, Applicant’s Memorandum, page 552, Applicant’s Record)
[22]
The applicant
goes on to suggest that the investigator undertook the wrong analysis, which
“demonstrates a fundamental misapprehension of what constitutes racial
discrimination in the form of racial profiling” (para. 37, Applicant’s
Memorandum, page 552, Applicant’s Record). This analysis was flawed, argues the
applicant, because it did not acknowledge elements of racial profiling, namely:
the types of anti-Black stereotypes that may have operated at the time of the
incident; the role that such anti-Black stereotypes may have played in the
officers’ decisions to single out the applicant for questioning and search, and
does not examine the surrounding circumstances and take the required inferential
approach. In the applicant’s view, this is a fundamental error of law.
[23]
I
disagree with the applicant. The investigator’s role is to investigate
complaints, collect evidence, and submit a report of his or her findings to the
Commission. It is essentially a fact-finding mission. It is not the
investigator’s duty to apply the law to a set of facts and determine whether a
case of discrimination has been made out.
[24]
Likewise,
the Commission did not err by omitting or misapplying the test for racial profiling
and discrimination. Contrary to the argument of the applicant, the test that
the Commission must apply upon receiving an Investigation Report is not the
same legal test that a Tribunal applies when conducting a hearing into a
complaint of discrimination. While a Tribunal appointed by the Commission
considers whether a complaint has met the prima facie test for
discrimination, the Commission assesses the sufficiency of the evidence before
it to determine whether a full Tribunal hearing into a complaint is warranted:
The
Commission is not an adjudicative body; that is the role of a tribunal
appointed under the Act. When deciding whether a complaint should proceed to be
inquired into by a tribunal, the Commission fulfills a screening analysis
somewhat analogous to that of a judge at a preliminary inquiry. It is not the
job of the Commission to determine if the complaint is made out. Rather its
duty is to decide if, under the provisions of the Act, an inquiry is warranted having
regard to all the facts. The central component of the Commission’s role, then,
is that of assessing the sufficiency of the evidence before it.
(Cooper
v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para. 53.)
Although the Supreme Court of Canada later
determined in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova
Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, that
the ratio in Cooper was no longer good law, I am satisfied the Supreme
Court’s statement in Cooper, as it relates to the role of the
Commission, remains true.
[25]
The
test to be applied by the Commission was not to determine if the actions of the
CBSA officers constituted a prima facie case of racial profiling, and
thus, racial discrimination. Instead, the Commission was to examine the
evidence and dismiss the complaint if it was satisfied that, having regard to
all the circumstances of the complaint, an inquiry into the complaint was not
warranted (s. 44(3)(b), CHRA). Thus, the Commission did not commit an error of
law by omitting or failing to apply the correct test.
[26]
In
addition, in SEPQA, the Supreme Court discussed the analysis undertaken
by the Commission when determining whether to dismiss a complaint or proceed to
appoint a Tribunal, stating:
[Subsection]
44(3) of the [CHRA] provides that, upon receipt of the report of the
investigator, the Commission may request the appointment of a tribunal if it is
satisfied that, having regard to all the circumstances, an inquiry into the
compliant is warranted.
The
other course of action is to dismiss the complaint. In my opinion, it is the
intention of s. 36(3)(b) [now section 44(3)(b)] that this occur where there is
insufficient evidence to warrant appointment of a tribunal under s. 39. It is
not intended that this be a determination where the evidence is weighed as in a
judicial proceeding but rather the Commission must determine whether there
is a reasonable basis in the evidence for proceeding to the next stage.
(SEPQA, above, at 899.)
[27]
I am
satisfied it was not unreasonable for the Commission to conclude that, based on
the evidence before it, there was no reasonable basis in the evidence to refer
the complaint to the next stage. In his complaint, the applicant alleged that
he was treated in an adverse differential manner by the respondent in the
provision of a service (Customs clearance), in that he was subjected to greater
scrutiny, on the basis of his race, colour, sex, national or ethnic origin, and
perceived religious practice.
[28]
As
the investigator noted in his report, the applicant, himself, admitted that he
looks like a member of a religious group that uses marijuana as part of its
religious practice. The applicant also agreed that the officer’s who
interviewed him were trying to determine if he was bringing marijuana or drugs
with him into Canada and that this was a legitimate duty of Customs officers to
do so. In the applicant’s mind, however, the questioning was “intrusive”
because the second officer asked him detailed questions about his movements and
itinerary and he was asked “more than the standard questions”. According to the
applicant, the Customs officers did not need to ask him questions to determine
if he was smuggling drugs but instead should have determined this using x-ray
machines and sniffer dogs.
[29]
The
Customs officers, in exercising their duties, must ensure that the Customs
Act, R.S.C. 1985, (2nd Supp.), c. 1, and any other Act of Parliament
enforced by the officer or any regulations thereunder are not contravened. In
their questioning of the applicant and their inspection of his carry-on bag,
the bottle of rum, and his luggage, the Customs officers acted in compliance
with the powers conferred upon them by the Customs Act. They did not act
in a manner that extended beyond the scope of authority granted to them by law.
The Customs Act authorizes Customs officers to ask questions and to
inspect goods in the performance of their duties under the Act (see sections
11-13, 99). The Commission found that, based on this evidence, the applicant
was not subjected to unusual or unreasonable scrutiny. Thus, there was no
reasonable basis on the evidence for the compliant to proceed to the next
stage. Furthermore, had the Customs Officers not asked the ordinary questions
that they did, or inspected the Applicant’s carry-on bag and/or his luggage,
they would have failed to perform their duty as was expected of them.
[30]
It
is not for this Court, on judicial review, to undertake a reweighing of the
evidence. As Parliament has clearly indicated, the Court must not interfere
lightly in the decisions of the Commission when it is exercising its discretion
to refer or reject complaints. The Court must defer to the expertise of the
Commission. As such, I do not find that the Commission’s conclusion was
unreasonable and, consequentially, I see no reason to interfere with its
decision on these grounds.
3. Did the Commission breach the
principles of procedural fairness by failing to investigate the complaint in a
neutral and thorough manner?
[31]
In Miller
v. Canada (Canadian Human Rights
Commission (Re Goldberg, [1996] F.C.J. No. 735 (QL) at para. 10), Justice Jean-Eudes
Dubé of the Federal Court of Canada summarized the evolution of the
jurisprudence concerning procedural fairness after the Supreme Court of
Canada’s decision in SEPQA:
[P]rocedural fairness requires that
the Commission have an adequate and fair basis upon which to evaluate whether
there was sufficient evidence to warrant the appointment of a Tribunal. The
investigations conducted by the investigator prior to the decision must satisfy
at least two conditions: neutrality and thoroughness. In other words, the
investigation must be conducted in a manner which cannot be characterized as
biased or unfair and the investigation must be thorough in the sense that it
must be mindful of the various interests of the parties involved.
[32]
The
requirement of thoroughness in an investigation stems from the essential role that
investigators play in determining the merits of particular complaints (Slattery v. Canada
(Human Rights Commission), [1994] 2 F.C. 574 at 599). Judicial review is warranted
only where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence (Slattery, above, at
600). Where there exists a deficient investigation, the Commission’s decision
will be tainted, since “[i]f the reports were defective, it follows that the
Commission was not in possession of sufficient relevant information upon which
it could properly exercise its discretion” (Grover v. Canada (National
Research Council), 2001 FCT 687 at para. 70; see also Singh (S.K.) v.
Canada (Attorney General), 291 N.R. 365 at para. 7 (C.A.) and Kollar
v. Canadian Imperial Bank of Commerce, 2002 FCT 848 at para. 40).
[33]
In
the case at bar, the applicant submits that the investigation lacks
thoroughness, because the investigator failed to apply the correct legal test.
He suggests that, by failing to apply the correct legal test, the investigator
failed to conduct his investigation and analyze the facts with a critical
understanding of what constitutes racial profiling. As a result, argues the applicant,
the investigator made investigative omissions such as the failure to examine
the totality of the circumstances, failure to make critical inquiries related
to the test for racial profiling, failure to investigate the matter with
neutrality, and failure to conduct the thorough investigation needed where
there is unconscious, subtle or systemic racism (para. 42, Applicant’s
Memorandum, pages 553-554, Applicant’s Record).
[34]
I
have already concluded that the investigator did not err by omitting or misapplying
the correct legal test. Thus, I must also disagree with the applicant’s
assertion that the misapplication of the correct legal test caused the
investigator to make investigative omissions. I see no reason to question the
thoroughness or neutrality of the investigation in the case at bar. Thus, I am
satisfied that the Commission did not breach the rules of procedural fairness.
[35]
At
the conclusion of the Respondent’s submissions, counsel for the Respondent
asked that the Applicant’s application be dismissed with costs.
[36]
At
the conclusion of the Applicant’s reply to the Respondent’s submissions, the
Applicant asked the Court to allow the application with costs but also asked
that, in the event the Court should dismiss the application for judicial
review, it should be without costs.
[37]
After
considering the above request, I can see no reason why the Court should dismiss
the Applicant’s application without costs.
JUDGMENT
THIS COURT ADJUDGES
that the application for judicial review be dismissed
with costs in favour of the Respondent.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-190-05
STYLE OF CAUSE: PAUL
RICHARDS v. MINISTER OF PUBLIC SAFETYAND EMERGENCY PREPAREDNESS
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: October
15 and 22, 2007
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: October
25, 2007
APPEARANCES:
Ms. Marie Chen
|
FOR THE APPLICANT
|
Ms. Gillian
Patterson
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
Marie Chen
African
Canadian Legal Clinic
Toronto,
Ontario
|
FOR THE APPLICANT
|
John H. Sims,
Q.c.
Deputy
Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|