Docket:
T-237-13
Citation: 2013 FC 1102
Ottawa, Ontario, October
28, 2013
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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MOHAMED ALKOKA
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks judicial review of the
decision of the Canadian Human Rights Commission [the “Commission”] dated
January 3, 2013, which dismissed his complaint of discrimination against the
Royal Canadian Mounted Police [“RCMP”] pursuant to paragraph 44(3)(b)(i)of the Canadian
Human Rights Act [the “CHRA”].
[2]
The applicant seeks to raise important issues
about the role of the RCMP and, more generally, about the role of law
enforcement and security agencies to safeguard personal information. He submits
that when such information is shared with other countries, the necessary
caveats or cautions should be placed on the use of that personal information.
The applicant seeks to rely on the judicial review of the January 3, 2013
decision to raise these important issues. He submits that the investigation of
his complaint of racial profiling was too narrowly focused and lacked rigour
because the Commission did not consider the context of his complaint which
arose from his allegations that his personal information had been shared. He
submits that, as a result, the process was procedurally unfair.
[3]
However, the decision under review relates only
to the complaint as identified by the Commission in its preliminary assessment,
which “scoped” the complaint to events which occurred on December 16, 2008. The
Assessment Report and the January 3, 2013 decision of the Commission now under
review properly focus on the “scoped” complaint. The applicant submits that
even though the investigation was focused on the December 16, 2008 event, the
broader context, concerns and obligations regarding information sharing
required investigation. He submits that his allegations were at odds with the
RCMP’s denial of any involvement or interest in him and that this should have
triggered a more probing investigation by the Commission.
[4]
I do not agree that the investigation lacked
rigour or that the applicant was prevented from raising crucial evidence in the
form of the circumstantial or contextual evidence he now seeks to admit. Nor do
I agree that the January 3, 2013 decision of the Commission, which was based on
the Assessment Report, was not reasonable. The Assessment Report, which the
Commission relied on and which forms its reasons, considered the preliminary
report which “scoped” the complaint to the events of December 16, 2008. The
Commission considered all the submissions in response to the Assessment Report,
including those of the applicant. In all of the applicant’s submissions, he
reiterated allegations of information sharing dating back to 1999 and referred
to the contextual or circumstantial evidence he now seeks to submit to support
his argument that the investigation was not thorough or rigorous. The relevant
information and context were before the Commission in its consideration of the
December 16, 2008 event.
[5]
The application for judicial review is, therefore,
dismissed for the more detailed reasons which follow.
Background
to the Complaint
[6]
The applicant made his complaint in February
2010 alleging that the RCMP had shared personal information regarding his
charitable involvement in a Muslim organisation with Egyptian and American
authorities and, as a result of this information sharing, he was detained and
interrogated on several occasions in Egypt, denied entry and forced to return
to Canada at his own expense. The complaint noted the most recent incident on
December 16, 2008.
[7]
On February 11, 2011, the Commission issued its
report pursuant to Section 40 and 41 of the CHRA (the “Section 40/41
Report”) which recommended that the Commission address only the allegations
regarding the December 16, 2008 incident and provided the following reasons:
The Complainant
alleges that the discriminatory acts are part of a continuous pattern and are
therefore timely. However, despite the results of the privacy request, he
provides little evidence regarding how any earlier acts (which are not
specified or dated) are part of a “continuous pattern”. The Complainant alleges
that the Respondent shared information about his involvement in Muslim
charitable organizations in Canada with American and Egyptian authorities and
that as a result of this information sharing, he was denied entry to Egypt in
December 2008. […] The earlier allegations lack detail as to time frame and are
vague. The only allegations that are particularized are those relating to the
December 2008 incident.
[8]
The applicant was provided with the opportunity
to make submissions relating to the Section 40/41 Report and did so on or about
March 14, 2011. The applicant submitted, among other information, that the RCMP
had an interest in him dating back to 1999.
[9]
Following further submissions by the parties,
the Commission rendered its decision, on June 29, 2011, to deal with only the
alleged discriminatory conduct of December 2008 (the “Section 40/41 Decision”)
which noted:
The earlier
allegations should not be dealt with because the complainant has not shown that
they are part of a continuous pattern of discrimination.
[10]
The applicant did not seek judicial review of the
Section 40/41 Decision.
[11]
An Assessment Report of the complaint as scoped
was completed on October 2, 2012. The Assessor stated that she had reviewed and
considered all the material previously submitted by the parties as well as the
Section 40/41 Report and the corresponding Section 40/41 Decision. The
Assessment Report noted the background to the complaint, the allegations of
information sharing, the RCMP’s evidence that it had no knowledge of the
December 16, 2008 incident and had no involvement with the applicant, and that
the RCMP never investigated the applicant nor was he a person of interest. In
addition, the Assessment Report noted that the CBSA had confirmed that it had
not contacted, consulted with, or requested the assistance or presence of the
RCMP.
[12]
The Assessor concluded that the RCMP appeared to
have had no involvement but went on to consider, out of “an abundance of
caution”, the applicant’s allegations that the RCMP had engaged in surveillance
and monitoring of him since 1999 and that this may have been responsible for
information sharing which led to his detention in Egypt. The Assessor noted
that even if the RCMP did share information about the applicant with foreign
governments, it would be up to the foreign government whether or not to act on
the information. In addition, the alleged information sharing dated back over
10 years prior to the events of December 2008 and fell outside the scope of the
complaint.
[13]
The Assessment Report concluded:
19. On the
evidence, it appears that the respondent had no involvement what-so-ever with
the complainant on December 16, 2008 when he arrived in Canada. The complainant has not provided any evidence to support that the respondent
provided
information to the
Egyptian government on December 16, 2008. Furthermore, even though the
complainant suggests that the respondent “may have been” responsible for
providing information to the government of Egypt, from the complainant’s own
submissions, noted above, any information provided by the RCMP dates back to
1999 and clearly predates the December 2008 incident by several years.
20. As the
Commission already determined that only the December 2008 incident would be
dealt with, and, on the evidence the respondent had no involvement what-so-ever
with the complainant in December 2008, the analysis will not continue to question
d) or to Step 2.
[14]
The recommendation stated:
It is recommended,
pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act,
that the Commission dismiss the complaint because:
•
evidence gathered indicates that the respondent
had no involvement in the December 16, 2008 event.
[15]
The applicant’s submissions in response to the
Assessment Report were received by the Commission on October 29, 2012 due to
the Commission’s consent to extend the time for receipt. The applicant
submitted that the Commission had inappropriately limited its investigation to
events that occurred in December 2008. The applicant referred to contextual
information that would be relevant to the December 2008 allegations, including
excerpts of information provided to him through Privacy Act releases,
reference to excerpts from the Arar Inquiry Report, and an excerpt from a
report prepared for the Canadian Human Rights Commission entitled “Human Rights
Issues in National Security: An Inventory of Agency Considerations”.
[16]
The Commission dismissed the complaint on
January 3, 2013 following consideration of the Assessment Report and the
submissions, concluding that:
“After examining this
information, the Commission decided, pursuant to subparagraph 44(3)(b)(i) of
the Canadian Human Rights Act, to dismiss the complaint because:
•
the evidence gathered indicates that the
respondent had no involvement in the December 16, 2008 event.”
Issues
[17]
The applicant raised three interrelated issues.
The applicant alleges that the Commission erred: by inappropriately limiting
its investigation; by dismissing the complaint on the basis of the principle of
extraterritoriality; and, by breaching procedural fairness by failing to allow
the applicant fair and appropriate scope to address the extraterritoriality
issues.
[18]
As a preliminary issue, the respondent raised an
objection to the Affidavit of Ms Jans which was submitted by the applicant in
support of his application for judicial review and to the exhibits attached to
that affidavit. The exhibits were not before the Commission and are, therefore,
not part of the record.
The Affidavit
[19]
The applicant relies on the Affidavit of Ms
Jans, a law clerk in the office of his counsel, and the appended exhibits, to
support his submission that the Commission’s investigation was too narrow and
lacked rigour.
[20]
The applicant and respondent agree that an
application for judicial review is not a trial de novo and the
evidentiary record must be limited to material that was before the
administrative tribunal, with limited exceptions (Ochapowace First Nation v
Canada (Attorney General), 2007 FC 920 at paras 9-10, [2007] FCJ No. 1195).
[21]
The respondent submits that none of the
exceptions apply and that several paragraphs of the affidavit and the exhibits
referred to should be struck. First, evidence before the Court must be based on
the personal knowledge of the deponent and free from hearsay (Rule 81 of the Federal
Courts Rules; Kwicksutaineuk Ah-Kwa-Mish First Nation v Canada (Attorney
General), 2012 FC 517 at para 74, [2012] FCJ No 772; Doolan v Canada
(Attorney General), 2005 FC 1414 at paras 25-27, [2005] FCJ No 1724).
Second, an affidavit ought to be free of argument and opinion (Van
Duyvenbode v Canada (Attorney General), 2009 FCA 120, [2009] FCJ No 504; Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18, [2010] FCJ No
194).
[22]
I agree with the respondent that paragraphs 19
to 26 and the exhibits referred to in those paragraphs should be struck.
[23]
The affidavit states that the source of the
affiant’s knowledge is her review of the documents in the applicant’s file and,
where stated, is based on information from counsel for the applicant.
[24]
There is no objection to the parts of the
affidavit which recount the chronology of the complaint, and which refer to and
attach the complaint, the Section 40/41 Report and submissions in response, and
the Assessment Report and submissions in response.
[25]
However, paragraphs 19 to 26 include the opinion
of the affiant that she does not believe that the 10 page limit for submissions
in response to the Assessment Report provided sufficient scope for the
applicant to provide the documents to the Commission which are attached as
exhibits to the affidavit and which the applicant seeks to introduce in these
proceedings.
[26]
The affiant’s belief is really an opinion and
argument that the investigation into the complaint was too narrow and did not
take into account the broader allegations of information sharing, which are not
the subject of the complaint as scoped.
[27]
The applicant relies on Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities),
2006 FC 720 at para 50, [2006] FCJ No 917 [Gagliano] to support his
argument that where allegations of procedural fairness arise, an exception is
justified. Justice Teitlebaum noted:
[50] It is trite law that in general only materials that were
available to the decision-maker at the time of rendering a decision are
considered relevant for the purposes of Rule 317. However, the jurisprudence
also carves out exceptions to this rule. The Commission's own written
representations indicate that, "An exception exists where it is alleged
that the federal board breached procedural fairness or committed jurisdictional
error": David Sgayias et al., Federal Practice, (Toronto: Thomson,
2005) at 695, reproduced in the Commission's Memorandum of Fact and Law (Chrétien, T-2118-05) at para. 24. The above comment is clearly
supported by jurisprudence which indicates that materials beyond those before
the decision-maker may be considered relevant where it is alleged that the
decision-maker breached procedural fairness, or where there is an allegation of
a reasonable apprehension of bias on the part of the decision-maker: Deh Cho First Nations, above; Friends
of the West, above; Telus, above; Lindo, above.
[28]
The applicant submits that an exception is
justified because of his allegations that the Commission breached procedural
fairness.
[29]
Although the applicant submits that these
exhibits are not offered to support the record for a review of the merits or
reasonableness of the decision but rather to support his argument that his
rights to procedural fairness were violated, they are nonetheless inadmissible.
As noted in Gagliano, other materials not before the decision-maker may
be relevant. However, on the facts of this case, the allegation of procedural
fairness does not, on its own, open the door to submission of new material.
[30]
As explained in greater detail below, the
applicant’s argument regarding procedural fairness is linked to his argument
that the decision was based on extraterritoriality – i.e. that if the
information was used by the Egyptian authorities, the use of the information
was up to them – and that the applicant did not have a full opportunity to
address this finding. However, the Commission decision was based on lack of
evidence, not on extraterritoriality.
[31]
I do not find that there was any breach of
procedural fairness with respect to the investigation of the complaint into the
December 16, 2008 incident. The applicant had ample opportunity to provide
submissions in response at each stage of the process and did so. In his
submissions, he referred to some of the documents he now seeks to admit,
including Commissioner O’Connor’s Report on the Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar and the report prepared
for the Canadian Human Rights Commission. He reiterated his allegations of
information sharing dating back to 1999 in his submissions at each stage. The
Commission acknowledged these allegations. It cannot be said that he was denied
his opportunity to provide the context he now submits is crucial circumstantial
evidence.
[32]
Moreover, with respect to the specific exhibits,
Exhibits K and L cannot be admitted because the applicant could have, but did
not, submit them at any stage during the complaint.
[33]
Exhibits M, N, P, Q and R cannot be admitted
because they were authored by individuals who could not be cross-examined on this
application.
[34]
Exhibit O is a complaint against CSIS which is
not relevant to the complaint at issue.
[35]
As noted by the respondent, Exhibits M and Q
were authored by Commissioner O’Connor and are based on a large body of
evidence heard during the Arar Commission, however, the findings and
recommendations therein cannot be relied upon in unrelated proceedings as
evidence in relation to a specific complaint (see Robb Estate v St Joseph’s
Health Care Centre, [1998] OJ No 5394, (1998) 31 CPC (4th) 99 (Ont
Sup Ct)).
[36]
The respondent also notes, in response to the
applicant’s assertion that he was denied procedural fairness because of the 10 page
limit for his submissions which prevented him from providing the contextual
information he now seeks to submit, that he could have simply listed the
documents.
Standard of
Review
[37]
With respect to decisions of the Commission,
absent a breach of procedural fairness or an error of law, a reviewing court
should only intervene where it is shown that the decision of the Commission is
unreasonable.
[38]
The issue of whether the investigation has been
conducted in accordance with procedural fairness is to be reviewed against the
standard of correctness.
[39]
The issue of whether the Commission erred in its
determination to dismiss the complaint, based on the Assessor’s findings of
fact and weighing of the evidence, is to be reviewed on the standard of
reasonableness (Sketchley v Canada (Attorney General), 2005 FCA 404 at
para 53-55, 111).
[40]
In the recent decision in Canadian Union of
Public Employees (Airline Division) v Air Canada, 2013 FC 184 at
para 60, [2013] FCJ No 230 [CUPE], Justice Mactavish addressed the
standard of review and summarised all of the relevant principles governing
Commission Investigations. As these principles address the very issues raised
in the present case, and refer to jurisprudence cited by the applicant and
respondent, I have set them out below:
[60] The role of the Canadian Human Rights
Commission was considered by the Supreme Court of Canada in Cooper v. Canada
(Canadian Human Rights Commission), [1996] S.C.J. No. 115, [1996] 3 S.C.R.
854. There the Court observed that the Commission is not an adjudicative
body, and that the adjudication of human rights complaints is reserved to the
Canadian Human Rights Tribunal.
[61] Rather, the role of the Commission is
to carry out an administrative and screening function. It is the duty of the
Commission “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, above, at para. 53; see also
Syndicat des employés de production du Québec et de l'Acadie v. Canada
(Human Rights Commission), [1989] S.C.J. No. 103, [1989] 2 S.C.R. 879 [SEPQA].
[62] The Commission has a broad discretion
to determine whether “having regard to all of the circumstances” further
inquiry is warranted: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 at paras. 26
and 46; Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3,
[1994] 3 F.C.J. No. 361 (F.C.A.).
[63] Indeed, in Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113,
[1998] F.C.J. No. 1609 [Bell Canada], the Federal Court of Appeal noted
that “[t]he Act grants the Commission a remarkable degree of latitude when it
is performing its screening function on receipt of an investigation report”: at
para. 38.
[64] In Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574, [1994] F.C.J. No. 181, aff’d
[1996] F.C.J. No. 385, 205 N.R. 383 (F.C.A.), this Court discussed the content
of the duty of procedural fairness required in Commission investigations.
The Court observed that in fulfilling its statutory responsibility to
investigate complaints of discrimination, investigations carried out by the
Commission had to be both neutral and thorough.
[65] Insofar as the requirement of
thoroughness is concerned, the Federal Court observed in Slattery that
“deference must be given to administrative decision-makers to assess the
probative value of evidence and to decide to further investigate or not to
further investigate accordingly”. As a consequence, “[i]t should only be
where unreasonable omissions are made, for example where an investigator failed
to investigate obviously crucial evidence, that judicial review is warranted”:
at para 56.
[66] As to what will constitute “obviously
crucial evidence”, this Court has stated that “the ‘obviously crucial test’
requires that it should have been obvious to a reasonable person that the
evidence an applicant argues should have been investigated was crucial given
the allegations in the complaint”: Gosal v. Canada (Attorney General),
2011 FC 570, [2011] F.C.J. No. 1147 at para. 54; Beauregard v. Canada Post,
2005 FC 1383, [2005] F.C.J. No. 1676 at para. 21.
[67] The
requirement for thoroughness in investigations must also be considered in light
of the Commission's administrative and financial realities, and the
Commission’s interest in “maintaining a workable and administratively effective
system”: Boahene-Agbo v. Canada (Canadian Human Rights Commission),
[1994] F.C.J. No. 1611, 86 F.T.R. 101 at para. 79, citing Slattery,
above, at para. 55.
[68] With this in mind, the jurisprudence
has established that the Commission investigations do not have to be perfect.
As the Federal Court of Appeal observed in Tahmourpour v. Canada (Solicitor General), 2005 FCA 113, [2005] F.C.J. No. 543 at para. 39:
Any judicial
review of the Commission’s procedure must recognize that the agency is master
of its own process and must be afforded considerable latitude in the way that
it conducts its investigations. An investigation into a human rights complaint
cannot be held to a standard of perfection; it is not required to turn every
stone. The Commission's resources are limited and its case load is heavy. It
must therefore balance the interests of complainants in the fullest possible investigation
and the demands of administrative efficacy” [Citations omitted]
[69] The jurisprudence has also established
that some defects in an investigation may be overcome by providing the parties
with the right to make submissions with respect to the investigation report.
[70] For example, in Slattery, the
Court observed that where, as here, the parties have an opportunity to make
submissions in response to an investigator's report, it may be possible to
compensate for more minor omissions in the investigation by bringing the
omissions to the Commission’s attention. As a result, “it should be only where
complainants are unable to rectify such omissions that judicial review would be
warranted”. This would include situations “where the omission is of such a
fundamental nature that merely drawing the decision-maker’s attention to the
omission cannot compensate for it”. Judicial intervention may also be warranted
where the Commission “explicitly disregards” the fundamental evidence: all
quotes from Slattery, above at para. 57
[71] Similarly, in Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056, the Federal Court
of Appeal observed that the only errors that will justify the intervention of a
court on review are “investigative flaws that are so fundamental that they
cannot be remedied by the parties’ further responding submissions”: at para.
38.
[72] Where, as here, the Commission adopts
the recommendations of an investigation report and provides limited reasons for
its decision, the investigation report will be viewed as constituting the
Commission’s reasoning for the purpose of a decision under section 44(3) of the
Act: see SEPQA, above at para. 35; Bell Canada above at
para. 30.
[73] However, a decision to dismiss a complaint
made by the Commission in reliance upon a deficient investigation will itself
be deficient because “[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”: see Grover v. Canada (National
Research Council), 2001 FCT 687, [2001] F.C.J. No. 1012 at para. 70; see
also Sketchley, above, at para. 112.
[41]
In summary, the
following principles are applicable in this case: the Commission carries out an
administrative and screening function; the Commission has broad discretion to
determine, “having regard to all of the circumstances”, whether further inquiry
is warranted; the Commission must thoroughly and neutrally investigate
complaints of discrimination; Commission investigations do not need to be
perfect; only where unreasonable omissions are made, such as where an
investigator failed to investigate “obviously crucial evidence”, will judicial
review be warranted; and, “obviously crucial evidence” means that it should
have been obvious to a reasonable person that the evidence an applicant argues
should have been investigated was crucial given the allegations in the
complaint.
Did the Commission err in limiting
its investigation to the December 16, 2008 incident and in failing to consider
circumstantial evidence?
[42]
The applicant submits that the Commission erred
by failing to consider circumstantial evidence of discrimination, and as a
result unreasonably limited its investigation of the complaint to events that
occurred on December 16, 2008. The applicant’s position is that information
about the RCMP’s involvement with him is not irrelevant or beyond the scope of
consideration simply because the Commission decided to only deal with the
December 16, 2008 incident. He submits that, when faced with his allegations
that the RCMP had his personal information in its database, as the Privacy
Act disclosure revealed, the Commission should have probed further, rather
than accepting the RCMP’s evidence that it had no involvement with the
applicant. The applicant submits that the Court should allow judicial review
because the lack of rigour of the investigation is at odds with the overall
national security context of human rights complaints regarding racial profiling
and that the Assessment Report shows an ignorance of the relevant principles.
[43]
The applicant relies on Grover v National Research
Council, 2001 FCT 687, [2001] FCJ No 1012 which dealt with allegations of
procedural unfairness and where the applicant sought to introduce new evidence.
Justice Heneghan reviewed the relevant principles and, with respect to the need
for a thorough investigation noted, at para 63:
[63] In Miller v. Canada, supra, Justice Dubé stated the test with respect to the thoroughness of an
investigation by the Commission as follows, at page 201:
The SEPQA decision [Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879]
has been followed and expanded upon by several Federal Court decisions.
These decisions are to the effect that procedural 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. There is no
obligation placed upon the investigator to interview each and every person
suggested by the parties. The investigator's report need not address each and
every alleged incident of discrimination, specially [sic] where the
parties will have an opportunity to fill gaps by way of response.
[44]
The applicant submits that the evidence he seeks
to rely on now and which should have been considered by the Commission is
crucial because without it he cannot establish his complaint. In other words,
he is at a disadvantage in demonstrating that he was racially profiled due to
information sharing by the RCMP because the RCMP controls the information and
has denied any involvement. The applicant relies on Uzoaba v Canada
(Correctional Service), [1994] CHRD No 7 at 8-9 (CHRT) and Basi v
Canadian National Railway, [1988] CHRD No 2 at 8 (CHRT) as authority for
his submission that this evidence should be accepted.
[45]
The applicant also argues that the submissions
he made in response to the Assessment Report cannot fill in the gaps and are
not a substitute for the Commission’s failure to engage in a thorough
consideration of his allegations.
[46]
In my view, the Commission did not err in its
treatment of the circumstantial evidence.
[47]
As noted above in CUPE, the obviously
crucial test requires that it should have been obvious to a reasonable person
that the evidence the applicant argues should have been investigated was
crucial given the allegations in the complaint.
[48]
Given the allegations in the complaint, the
circumstantial evidence the applicant seeks to admit does not meet the test.
The evidence as found by the Commission is that the RCMP was not involved in
the December 16, 2008 event. The RCMP’s evidence is that the applicant was not
at that time, nor at any time, a person of interest.
[49]
I also note that some of the circumstantial or
contextual evidence was referred to by the applicant, in a summary manner, in
his submissions in response to the Assessment Report and the Commission is
presumed to have considered these submissions. These submissions did provide an
opportunity for the applicant to fill in any gaps he perceived in the
Assessment Report.
[50]
A complainant must demonstrate a link between
circumstantial evidence and the evidence of individual discrimination against
him (Chopra v Canada (Department of National Health and Welfare), [2001]
CHRD No. 20 (CHRT)).
[51]
As noted by the respondent, the necessary
foundation for the consideration of circumstantial evidence has not been
established. There is no evidence, only an allegation, which is clearly denied,
that the RCMP shared information with Egyptian authorities about the applicant.
Moreover, the complaint relates only to the events of December 16, 2008, as the
complaint had been scoped to this event following the Section 40 /41 Report
which found that the earlier allegations were vague and lacked sufficient
details about time frames and did not establish a continued pattern of
discrimination. There was, therefore, no basis for the Commission to have
considered the contextual or circumstantial evidence as general background
relating to other earlier and vague allegations of information sharing and the
broader issue of information sharing policies and practices.
[52]
Given that the Commission’s investigatory
processes are worthy of significant deference, the Court will not intervene
where the evidence the applicant alleges was not considered does not relate to
a key element of the complaint.
[53]
I appreciate that the applicant accepts that the
investigation was focused only on the one incident on December 16, 2008 yet he
remains of the view that this complaint could not be investigated in isolation.
[54]
I do not agree with his argument. The scope of
the complaint was narrowed by the Section 40/41 Decision because, as the
Commission found, the evidence submitted by the applicant did not establish
that the alleged discriminatory acts prior to December 2008 formed a continuous
pattern of discrimination. Prior to the Section 40/41 Decision, the applicant
made two submissions in response to the Section 40/41 Report, which the
Commission considered and subsequently rejected. After the Section 40/41
Decision, the applicant had an opportunity to, but did not, apply for judicial
review.
[55]
In any event, as noted above, some of the
information the applicant argues ought to have been considered by the
Commission was presented to the Commission, in excerpt form, through the
applicant’s submissions in response to the Assessment Report. The applicant
also raised broader information sharing issues in his submissions along with
his allegations that his own personal information had been shared with other
governments – so these issues were brought to the attention of the Commission.
[56]
Moreover, the fact that the Commission did not
mention each and every document entered as evidence before it does not indicate
that it failed to take it all into account: on the contrary, the Commission is
assumed to have weighed and considered all the evidence presented to it unless
the contrary is shown (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 at para 1 (FCA)).
[57]
Subparagraph 44(3)(b)(i) provides that on
receipt of the Assessment Report, the Commission shall dismiss the complaint to
which the report relates if satisfied that, having regard to all of the
circumstances of the complaint, an inquiry into the complaint is not warranted.
[58]
The Commission has a broad discretion and a “remarkable
degree of latitude” when performing its screening role that is not lightly
interfered with (CUPE, supra at para 63).
[59]
In this case, the Commission found that there
was no evidence of involvement by the RCMP. As noted above in CUPE, the
central component of the Commission’s role is to assess the sufficiency of the
evidence before it. The Commission did so and reached a reasonable conclusion
that is justified on the evidence it considered and is clearly explained in its
reasons.
Did the Commission err in finding
that the use of any information shared was beyond its jurisdiction due to
principles of extraterritoriality?
[60]
The applicant argues that the Commission
dismissed the complaint because it concluded that if the RCMP had shared
information with foreign governments, “it is up to the foreign government
whether or not to act on the information”. The applicant submits that the RCMP
had an ongoing obligation to protect personal information and if it were
shared, to place caveats or cautions on its use.
[61]
The applicant submits that he should have had a
full opportunity to address this finding and could not do so within the 10 page
limit for submissions in response to the Assessment Report. This argument, in
turn, leads to the applicant’s submission that crucial evidence was omitted and
that the investigation was not rigorous.
[62]
I agree with the respondent and with the clear
wording of the Commission’s decision that its conclusions regarding
extraterritoriality were not determinative in its dismissal of the applicant’s
complaint. The Assessor concluded that the evidence did not establish that the
RCMP shared information relating to the applicant with Egyptian authorities.
The Assessor noted the RCMP’s evidence that it had no knowledge of the December
16, 2008 incident, no involvement with the applicant more generally, never
investigated the applicant, and that the applicant was not a person of
interest. To reiterate the conclusions of the Assessor, on the evidence, the
RCMP had no involvement “what-so-ever” with the complainant in December 2008.
[63]
The applicant hopes to raise issues about the
role of the police and security agencies in protecting personal information and
the use to which that information is put, and argues that the CHRA should
apply because the information originated in Canada.
[64]
However, the judicial review of the dismissal of
the complaint which focuses only on the events of December 16, 2008 is not the
appropriate forum to address these broader issues.
Was the applicant denied procedural fairness?
[65]
The applicant’s submission that he was denied
procedural fairness is linked to his argument that the Commission erred in
dismissing his complaint on the basis of extraterritoriality. The applicant
submits that he was denied an opportunity to fully and adequately respond to
this finding due to the 10 page limit for submissions which prevented him from
submitting important circumstantial or contextual evidence as a response. This
evidence was appended as Exhibits K to R of the Affidavit of Ms Jans which, as
noted above, I have found is not admissible in this judicial review. The
applicant submits that in the absence of this evidence, the Commission did not
conduct a rigorous and thorough investigation as this evidence would have led
the Commission to probe the RCMP to reconcile its denial of involvement with
the applicant’s allegations that his personal information was in its database.
[66]
I do not agree that the Commission violated the
applicant’s right to procedural fairness by adhering to its 10 page limit. The
Commission did not base its decision on extraterritoriality, rather on lack of
evidence of the involvement of the RCMP. Moreover, as noted above, the
applicant included the contextual information, albeit in a summary manner, in
his submissions. From the applicant’s submissions and all of the material he
submitted, the Commission was aware of the broader context of his allegations
regarding information sharing.
[67]
The duty of procedural fairness with respect to
an investigation and consequent decision of the Commission is to give the
complainant the Assessment Report and provide the complainant with a full
opportunity to respond, and to consider that response before the Commission
decides (Murray v Canada (Human Rights Commission), 2002 FCT 699 at para
24, [2002] FCJ No 1002).
[68]
The applicant had ample opportunity to respond
to the Section 40/41 Report and to the Assessment Report in order to address
any alleged gaps left by the Assessor or to bring to the Assessor’s attention
any allegedly important missing evidence. Although the applicant takes issue
with the 10 page limit, he did provide excerpts of the evidence he would have
preferred to submit in its entirety.
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