Date:
20130116
Docket:
T-1884-11
Citation:
2013 FC 40
Ottawa, Ontario,
January 16, 2013
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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FALLAN DAVIS and
CANADIAN HUMAN RIGHTS
COMMISSION
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
On
November 18, 2005, Teiohontathe Fallan Davis presented herself at the Canadian
border crossing at Cornwall, Ontario, seeking readmission to Canada. Ms. Davis’ subsequent interaction with employees of the Canada Border Services
Agency [CBSA] led to her filing a complaint with the Canadian Human Rights
Commission.
[2]
Ms.
Davis’ complaint alleges that CBSA officers infringed her rights under section
5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 [CHRA],
by treating her in an adverse differential fashion in the provision of
services customarily available to the public because she was a young indigenous
woman.
[3]
Following
an investigation into Ms. Davis’ complaint, the Commission referred the
complaint to the Canadian Human Rights Tribunal for a hearing. The CBSA
ultimately brought a motion before the Tribunal seeking to have the complaint
dismissed on the basis that it was not providing “services” for the purposes of
section 5 of the CHRA when its employees performed their duties
enforcing the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd
Supp.).
[4]
The
Tribunal dismissed the CBSA’s motion, finding that in processing Ms. Davis and
her vehicle through primary and secondary examinations, CBSA officers were
indeed providing “services” within the meaning of section 5 of the CHRA.
The CBSA now seeks judicial review of that decision.
[5]
For
the reasons that follow, I have concluded that the Tribunal’s decision was
reasonable. Consequently, the application for judicial review will be
dismissed.
Background
[6]
Ms.
Davis is a resident of the Akwesasne Reserve near Cornwall, Ontario. Although she
lives in Canada, Ms. Davis’ community extends into the United States, with the result that she frequently crosses the border at the Cornwall Island port of entry [POE] to visit family, work, bring her daughter to school, and so on. Ms.
Davis asserts that she sometimes has to cross the border as many as 10 times a
day.
[7]
On
the day in question, Ms. Davis says that she was returning home to Canada when a CBSA officer at the Cornwall Island POE directed her to pull over for a
further inspection. During this secondary inspection, Ms. Davis’ vehicle was
scanned using a Vehicle and Cargo Inspection System, which is used to detect
hidden compartments. The vehicle was also physically searched by several CBSA
officers, who discovered $250 worth of undeclared goods. After advising the
CBSA officers that she was going to call the Mohawk Warrior Society for
support, Ms. Davis was allowed to enter Canada without having to pay duty on
these goods.
[8]
Ms.
Davis alleges in her complaint that in singling her out for further
examination, CBSA officers engaged in racial profiling based upon her status as
a young indigenous woman. She further alleges that she was treated with
heightened suspicion and aggression by the CBSA officers, and that she was the
subject of racist slurs by the officers. Finally, Ms. Davis alleges that this
incident reflects a pattern of systemic discrimination by CBSA officers against
members of her community.
[9]
Ms.
Davis’ allegations have been denied by the CBSA.
The Legislative Provision in
Issue
[10]
Section
5 of the CHRA provides that:
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5. It is a discriminatory practice in the provision of
goods, services, facilities or accommodation customarily available to the
general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to
differentiate adversely in relation to any individual,
on a
prohibited ground of discrimination.
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5. Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite,
le fait, pour le fournisseur de biens, de services, d’installations ou de
moyens d’hébergement destinés au public :
a) d’en priver un individu;
b) de
le défavoriser à l’occasion de leur fourniture.
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[11]
Section
3 of the CHRA identifies race, sex and age as prohibited grounds of
discrimination.
Standard of Review
[12]
Before
turning to consider the merits of the application for judicial review, it is
first necessary to identify the standard of review to be applied to the
Tribunal’s decision.
[13]
In
its memorandum of fact and law, the applicant asserts that the question of
whether activities carried out by government officials in enforcing federal
legislation constitute a “service” customarily available to the general public
within the meaning of section 5 of the CHRA is reviewable on a standard
of correctness.
[14]
In
support of this contention, the applicant relies upon the decision of the
Federal Court of Appeal in Canada (Attorney General) v. Watkin,
2008 FCA 170, [2008] F.C.J. No. 710 [Watkin]. There, the Court
determined that the question of whether the actions complained of in that case
were “services” within the meaning of section 5 of the CHRA was a true
question of jurisdiction or vires, and was thus subject to review on the
standard of correctness. The Court did, however also note that in referring Mr.
Watkin’s complaint to the Tribunal for hearing, the Commission
had not provided any reasons with respect to the question of “services” to
which the Court could defer.
[15]
This
would ordinarily be the end of the matter, given that the standard of review
applicable to the question at issue in this case has already been determined by
an appellate court: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
SCR 190, at para. 57 [Dunsmuir].
[16]
That
said, counsel for the applicant noted that the Federal Court of Appeal’s
decision in Watkin was released just two months after the Supreme Court
of Canada rendered its decision in Dunsmuir. He further acknowledged
that there have been significant developments in the Supreme Court’s
jurisprudence since that time. Indeed, counsel quite candidly stated that in
light of the more recent Supreme Court jurisprudence, he would be
“hard-pressed” to say that correctness was in fact still the appropriate
standard of review with respect to the question in issue. I agree.
[17]
The
question at issue in this proceeding is one of mixed fact and law. It was,
moreover, decided by an expert tribunal - one that is statutorily empowered to
decide questions of law: see sections 48.1(2) and 50(2) of the CHRA.
[18]
To
the extent that the Tribunal was required to interpret the provisions of the CHRA in determining
whether the activities in issue in this case constituted “services” for the
purposes of a section 5 complaint, it has now been
well established that decisions involving the interpretation of a tribunal’s
own enabling legislation will presumptively attract the reasonableness standard
of review and will only attract a correctness standard in very limited
circumstances: see, for example, Smith v. Alliance Pipeline Ltd., 2011
SCC 7, [2011] 1 S.C.R. 160, at para. 28 [Smith] and Dunsmuir,
above at paras. 58-61.
[19]
This
proposition applies with equal force to decisions of the Canadian Human Rights
Tribunal: see Canada (Canadian Human
Rights Commission) v. Canada (Attorney General), 2011 SCC 53,
[2011] 3 S.C.R. 471 [Mowat].
[20]
Moreover,
our understanding of what constitutes a “true question of jurisdiction or vires”
has also evolved significantly since Watkin was decided. Indeed, Supreme
Court decisions since Dunsmuir have repeatedly emphasized the need for
reviewing courts to shift their focus away from historically broad notions of
‘jurisdiction’ in favour of increased deference to specialized decision-makers
interpreting their enabling legislation: see Mowat, above, at para. 24; Smith,
above at para. 28. Indeed, in Alberta (Information
and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2008]
F.C.J. No. 710, at para. 34, the Supreme Court questions whether the category
of “true questions of jurisdiction” even exists.
[21]
I
would further note that in Canada (Canadian Human Rights Commission) v.
Pankiw, 2010 FC 555, [2010] F.C.J. No. 657, this Court applied the
reasonableness standard of review to a determination by the Tribunal as to what
constituted a service customarily available to the public for the purposes of
section 5 of the Act.
[22]
Perhaps
most importantly, in Public Service Alliance of Canada v. Canada (Revenue
Agency), 2012 FCA 7, [2012] F.C.J. No. 40, leave to appeal ref’d [2012]
S.C.C.A. No. 102, the Federal Court of Appeal itself recently held that this
Court did not err in applying the reasonableness standard of review to a Tribunal
determination that assessment actions by the Minister
of National Revenue pursuant to the Income Tax Act,
R.S.C. 1985, c.1 (5th Supp.) were not “services” for the purposes of section 5
of the CHRA: see para. 2.
[23]
As
a consequence, I am satisfied that the Tribunal’s decision should be reviewed
against the reasonableness standard. In reviewing a decision against the
reasonableness standard, the Court must consider the justification,
transparency and intelligibility of the decision-making process, and whether
the decision falls within a range of possible acceptable outcomes which are
defensible in light of the facts and the law: see Dunsmuir, above at
para. 47, and Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
Was the Tribunal’s
Decision Reasonable?
[24]
As a starting point in the analysis, it should be noted that the
Supreme Court of Canada has
repeatedly stated that human rights legislation is to be given a large,
purposive and liberal interpretation in a manner consistent with its
overarching objectives, so as to ensure that the remedial goals of the
legislation are best achieved: see, for example, Canada (Attorney General)
v. Mossop, [1993] 1 S.C.R. 554, [1993] S.C.J. No. 20, at 611-12; Insurance
Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, 3 C.H.R.R.
D/1163; Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985]
2 S.C.R. 536, [1985] S.C.J. No. 74; C.N.R. v. Canada (Human Rights
Commission), [1987] 1 S.C.R. 1114, [1987] S.C.J. No. 42.
[25]
This
interpretive approach does not, however, permit interpretations which are
inconsistent with the wording of the legislation: New Brunswick (Human
Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45,
[2008] 2 S.C.R. 604, at para. 19.
[26]
The applicant relies heavily on the Federal Court of Appeal’s
decision in Watkin in support of its contention that the actions of CBSA
officers at issue in this proceeding do not constitute a “service” within the
meaning of section 5 of the CHRA. According to the applicant, the Tribunal erred in failing to
have regard to the teachings of Watkin, and in failing to follow the
analytical approach identified by the Federal Court of Appeal in that case.
[27]
In order to put the applicant’s submissions into context, it is,
therefore, first necessary to have regard to what the Federal Court of Appeal
actually had to say in Watkin in relation to the proper interpretation
of the term “services” as it is used in section 5 of the CHRA.
[28]
The Watkin case arose out of a human rights complaint
brought by a shareholder in a company that marketed and sold herbal products
intended for human and animal consumption. It was alleged in the complaint that
Health Canada gave preferential treatment to Asian and First Nations businesses
by regulating their herbal remedies less rigorously than it regulated products
sold by non-Asian or First Nations vendors.
[29]
The specific activities at issue in Watkin
included Health Canada’s request that the complainant’s company cease
advertising and selling certain products, followed by its recall and subsequent
seizure of the products in question.
[30]
The Federal Court of Appeal expressly disavowed the view expressed
in early human rights cases such as Bailey et al v. Minister of National
Revenue (1980), 1 C.H.R.R. D/193 and LeDeuff v. Canada Employment and
Immigration Commission (1987), 8 C.H.R.R. D/3690 at D/3693 (aff'd (1989), 9
C.H.R.R. D/4479), which held that all government actions carried out in the
performance of a statutory function constitute “services” within the meaning of
section 5 of the CHRA because they are undertaken by the Public Service
for the public good: see Watkin, above, at para. 32.
[31]
The Federal Court of Appeal held that in enforcing
the Food and Drugs Act, R.S.C. 1985, c. F-27, in the manner
complained of, Health Canada was not providing “services ... customarily available
to the general public” within the meaning of section 5 of the CHRA. According to the Court, “[t]he
actions in question are coercive measures intended to ensure compliance. The
fact that these measures are undertaken in the public interest does not make
them ‘services’”: Watkin, above, at para. 22.
[32]
The
Court went on to hold that “services”, as the term is used in section 5 of the CHRA,
contemplates “something of benefit being ‘held out’ as services
and ‘offered’ to the public” and involves something that is “the result of a
process which takes place ‘in the context of a public relationship’”: Watkin,
above, at para. 31.
[33]
According to the Federal Court of Appeal, enforcement actions are
not held out or offered to the public in any sense and are not the result of a
process which takes place in the context of a public relationship. As a
consequence, Health Canada’s enforcement activities did not constitute “services”
within the meaning of section 5 of the CHRA: Watkin, above, at para. 31.
[34]
By analogy, the applicant submits that the CBSA officers who
interacted with Ms. Davis on November 18, 2005, were carrying out their enforcement mandate under the Customs
Act. None of the activities in issue in the present case involved benefits
being held out to Ms. Davis. Rather, the actions of the CBSA officers were
coercive measures meant to ensure her compliance with the provisions of the Customs
Act.
[35]
As a consequence, the applicant contends that the Tribunal erred
in failing to follow Watkin, with the result that its finding that the
CBSA’s actions arose in the context of the provision of a service was
unreasonable.
[36]
In its reasons, the Tribunal reviewed the parties’ submissions with
respect to the significance of the Watkin decision at some length. The
Tribunal explained that the Federal Court of Appeal’s decision was
distinguishable on its facts, and was thus not determinative of the issue in this
case. Indeed, it is clear from the Tribunal’s decision that it
accepted the Commission’s argument that “[t]he relationship between [Ms. Davis]
and the CBSA is qualitatively different than that of the parties in Watkin”:
Tribunal decision at para. 18.
[37]
This finding was entirely reasonable, as the factual context in
which Ms. Davis’ complaint arises was quite different to the circumstances that
were before the Federal Court of Appeal in Watkin. Indeed, this
case involves different officers employed by a different agency carrying out
different activities pursuant to an entirely different statutory scheme.
[38]
The applicant’s argument is based upon a very narrow view of the
case. The actions of the CBSA officers in carrying out their enforcement
mandate under the Customs Act cannot be divorced from the broader
context in which those actions took place, and the other aspects of the CBSA’s
mandate that were engaged in the process.
[39]
In this case, Ms. Davis presented herself at a Canadian POE. She
was indeed seeking “something of benefit” to her:
namely her re-admission to Canada. It was in this context that she came into
contact with CBSA officers, and the events that ensued took place “in
the context of a public relationship”, as contemplated by Watkin.
[40]
There is no suggestion in Watkin that Health Canada had any
obligation to assist vendors in the sale of regulated products. In contrast,
as was noted by the Tribunal, the facilitation of the flow of people across the
border is an express part of the CBSA’s statutory mandate. Subsection 5(1) of
the Canada Border Services Agency Act, S.C., 2005, c. 38, provides that
the CBSA “is responsible for providing integrated border services that support
national security and public safety priorities and facilitate the free flow of persons
and goods … that meet all requirements under the program legislation…”
[41]
It is also worth noting that the subsection cited above actually
refers to the provision of “integrated border services” in describing
this aspect of the CBSA’s mandate.
[42]
Moreover, the CBSA’s own publications hold itself out as offering
services to the public. For example, the CBSA website has a section entitled
“Serving our Clients”, and includes a commitment to “service excellence”. The
CBSA’s clients are identified as including Canadian citizens, permanent
residents and visitors to Canada.
[43]
A document on the website entitled “Our Service Commitment”
discusses the CBSA’s goal of providing a “high standard of service”. Moreover,
the section of this document entitled “How you can help us assist you” makes it
clear that the CBSA’s “service commitment” is intended to apply specifically in
the context of examinations at border crossings.
[44]
Thus the requirement at paragraph 31 of Watkin that “something of benefit” be “‘held out’ as services” and “offered to
the public” has clearly been satisfied on the record in this case.
[45]
This is not to say that everything that the CBSA does will
necessarily constitute a service customarily available to the general public
within the meaning of section 5 of the CHRA. There may well be
enforcement activities carried out by the Agency that would not meet the test
for “services” established by the Federal Court of Appeal in Watkin. It
is, however, neither necessary nor appropriate to try to identify those
activities in this case. Each situation giving rise to a human rights complaint
will have to be examined in light of its own particular circumstances in order
to determine whether the specific activities in issue constitute “services” for
the purposes of section 5 of the Act.
[46]
Suffice it to say that, as explained above, the Tribunal’s
conclusion that the activities of the CBSA officers in issue in this
case took place in the context of the provision of a service customarily
available to the public was one that was reasonably open to it on the record
before it. Moreover, the Tribunal’s decision falls within the
range of possible acceptable outcomes that are defensible in light of the facts
and the law.
[47]
The above finding is sufficient to dispose of this application. I
would, however, note that the Tribunal provided additional reasons for
concluding that the CBSA was providing services customarily available to the
public in this case. These additional reasons bear comment.
[48]
The Tribunal relied upon the Customs and Excise
Human Rights Investigation Regulations, SOR/83-196 [CEHRI
Regulations], which set out how human rights complaints relating to customs
matters are to be investigated. According to the Tribunal, these regulations
“establish a public right to file CHRA complaints relating to the manner
in which CBSA officers deal with travelers in administering or enforcing federal
customs and excise law”.
[49]
I agree with the applicant that the Tribunal’s reliance on the CEHRI
Regulations was not reasonable. As
the Commission quite properly conceded, the right to file human rights
complaints is established by the CHRA itself, and not by the CEHRI
Regulations.
[50]
Moreover, although there is a reference in section 3 of the CEHRI
Regulations to complaints being received by the Commission in relation to
actions of CBSA officers engaged in the enforcement of a law, a review of the Regulations
discloses that they are procedural in nature. This is reflected in the full
title of the Regulations, which is “Regulations respecting the manner in which human rights
complaints relating to customs and excise will be investigated”. The Regulations
do not purport to interpret the term “services” as it is used in section 5 of
the CHRA, nor do they confer any substantive rights.
[51]
The Tribunal’s reliance on Memoranda of Understanding between the
Commission and the CBSA was similarly misplaced. As noted by the applicant’s
affiant, the Memoranda of Understanding define “the procedures, roles,
responsibilities and timelines intended to guide the review and processing of complaints
made against the CBSA to the Commission ….” The Memoranda also discuss
measures that the two agencies would take to help prevent discrimination.
[52]
Once again, however, these documents (both of which post-date the
incident that forms the subject matter of Ms. Davis’ human rights complaint) do
not purport to interpret the term “services” as it is used in section 5 of the CHRA,
nor do they confer any substantive rights on complainants in this regard.
Moreover, it would not have been open to the parties to expand or circumscribe
by agreement the meaning of a statutory term such as “services”.
[53]
However, these errors are not material to the result, in light of
my conclusion as to the reasonableness of the Tribunal’s finding based upon the
test established by the Federal Court of Appeal in Watkin. For the same
reason, it is not necessary to address the applicant’s arguments with respect
to the Tribunal’s reliance on provincial tribunal and court decisions characterizing
police enforcement activities as “services” for the purposes of human rights
legislation.
Conclusion
[54]
For
these reasons, I have concluded that the Tribunal’s finding that the CBSA was indeed providing a “service” customarily available to the
general public when it interacted with Ms. Davis on November
18, 2005, was reasonable. Consequently, the application for judicial review is
dismissed. In accordance with the agreement of counsel, there shall be no order
as to costs.
ORDER
THIS COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed.
“Anne Mactavish”
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