Date: 20040401
Docket: T-587-01
Citation: 2004 FC 491
BETWEEN:
IRVINE FORREST
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") conveyed to Mr. Forrest (the "Applicant") by a letter in the following terms:
I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint ... against the Correctional Service of Canada.
Before rendering its decision, the Commission reviewed the reports disclosed to you previously. After examining this information, the Commission decided not to deal with the complaint for the following reasons:
pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act, not to deal with the complaint because it is beyond its jurisdiction in that the victim of the alleged discriminatory practice was, at the time of such acts or omissions, not lawfully present in Canada.
Accordingly, the file on this matter has now been closed. [complaint designation number omitted]
[2] The decision under review is dated the 19th of March, 2001.
BACKGROUND
[3] The factual background leading up to the application for judicial review was essentially not in dispute.
[4] The Applicant is a citizen of Jamaica. He lawfully entered Canada for the first time in 1988. After a short stay, he returned to Jamaica. He came to Canada for the second time in 1989[1]. His second arrival in Canada was with visitor status. His visitor status continued to the 31st of January, 1993. Before the expiration of the Applicant's visitor status and related work permit, the Applicant was charged with an offence. He was acquitted on that initial charge. However, the Applicant was subsequently charged for and convicted of a series of offences resulting in the imposition of a term of imprisonment of eighteen (18) years. The Applicant began to serve his sentence on the 12th of May, 1995. He continues to serve that sentence.
[5] Following a hearing on the 23rd of November, 1995, the Applicant was ordered deported from Canada. The deportation order remains in effect but its implementation is stayed[2].
[6] Since the time of his incarceration, the Applicant alleges that he has been discriminated against in the provision of services by the Correctional Service of Canada ("CSC") in that he has been treated in an adverse, differential manner, and that, further, CSC has failed to provide him with an environment free of harassment. He alleges the bases of his mistreatment to be his "...colour (black) [his] national or ethnic origin (Jamaican) and [his] religion Muslim...". He alleges that such treatment is contrary to sections 5 and 14 of the Canadian Human Rights Act[3]. The Applicant further alleges that he has sought relief against his treatment by CSC through the filing with CSC of numerous complaints and grievances which have not been resolved to his satisfaction.
[7] The Applicant's complaint to the Commission was first rejected by decision dated the 16th of September, 1998. That rejection, as with the second rejection here under review, was based upon a determination of want of jurisdiction in the Commission. The Applicant sought judicial review of that decision and, on consent, the decision was set aside by Order of this Court dated the 20th of October, 1999. The substance of that Order reads as follows:
THIS COURT ORDERS that:
1. The application for judicial review be allowed.
2. The decision of the Canadian Human Rights Commission dated September 16th, 1998 be set aside and the matter be referred back to the Canadian Human Rights Commission for re-determination in accordance with the Direction of this Court that the question of the Applicant's status in Canada at the relevant time be referred to the Minister of Citizenship and Immigration as contemplated by s. 4(6) [should be 40(6)] of the Canadian Human Rights Act.
3. The Respondent shall pay the Applicant's costs of actual and proven disbursements.
[8] In accordance with the foregoing Order, the Commission consulted with the Minister of Citizenship and Immigration. The Minister responded in the following terms:
A search of Citizenship and Immigration Canada (CIC) records reveals that Mr. Forrest is neither a Canadian citizen nor a permanent resident of Canada.
He entered Canada on August 24, 1990, as a visitor and was granted extensions of his visitor status to January 31, 1993.
Mr. Forrest is under an order of deportation from Canada. This order was issued following an immigration hearing on November 23, 1995, and was delivered to him on that date by the adjudicator. Therefore, CIC takes the position that Mr. Forrest was not lawfully present in Canada at the time of the alleged acts or omissions (i.e. August 1995 to the present date). He has been ordered deported and is currently serving a sentence imposed by a Canadian court for offences under the Criminal Code of Canada.
RELIEF SOUGHT
[9] The Applicant seeks a range of reliefs most of which are beyond the jurisdiction of this Court on an application for judicial review.
THE ISSUES
[10] In his Memorandum of Fact and Law, the Applicant urges that the points at issue on this application for judicial review are the following:
Whether:
a) the Applicant is unlawfully present in Canada, as determined by the Canadian Human Rights Commission, in relying on s. 40(5) of the Canadian Human Rights Act and the Immigration Minister's determination;
b) the Canadian Human Right [sic] Commission erred in concluding that the Applicant's complaint was beyond its jurisdiction, pursuant to s. 41(c) of the Canadian Human Rights Act;
c) the Canadian Human Rights Commission's failure to investigate the Applicant's complaints constitutes a breach of the Applicant's s. 12 Rights, as guaranteed by the Canadian Charter of Rights and Freedoms;
d) s. 40(5) of the Canadian Human Rights Act constitutes a violation of the Applicant's s. 7, 12 and 15 Rights, as guaranteed by the Canadian Charter of Rights and Freedoms; and
e) The Canadian Human Rights Commission's decision to deny the Applicant equal protection from discrimination, while investigating other individuals' complaints, constitutes discrimination, contrary to s. 15 of the Canadian Charter of Rights and Freedoms.
[11] Interpreted broadly, the foregoing statement of issues, if properly before the Court and if determined in favour of the Applicant, might support relief in the nature of a declaration that paragraph 40(5)(a) of the Canadian Human Rights Act is, on the facts of this matter, inoperative in that it is inconsistent with the Canadian Charter of Rights and Freedoms[4]. No notice of constitutional question was served in accordance with section 57 of the Federal Court Act[5]. Based upon the manner in which this matter was argued before the Court, I am satisfied that the foregoing concern does not arise and that the real issue on this application for judicial review could be very simply stated in the following manner:
Did the Commission err in a reviewable manner in concluding that it lacked jurisdiction to deal with the Applicant's complaints?
[12] In essence, references by the Applicant to sections 7, 12 and 15 of the Charter were relied on in support of an argument that the Applicant should, at all relevant times, have been considered to be a person lawfully present in Canada for the purposes of determining the jurisdiction of the Commission to deal with his complaints.
RELEVANT STATUTORY PROVISIONS
[13] The relevant provisions of the Canadian Human Rights Act are the following:
40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière.
...
...
40.(5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
(a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;
40.(5) Pour l'application de la présente partie, la Commission n'est validement saisie d'une plainte que si l'acte discriminatoire_:
a) a eu lieu au Canada alors que la victime y était légalement présente ou qu'elle avait le droit d'y revenir;
...
...
40.(6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the Commission shall refer the question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant.
40.(6) En cas de doute sur la situation d'un individu par rapport à une plainte dans les cas prévus au paragraphe (5), la Commission renvoie la question au ministre compétent et elle ne peut procéder à l'instruction de la plainte que si la question est tranchée en faveur du plaignant.
[14] The definitions "offender" and "inmate" in subsection 2(1) of the Corrections and Conditional Release Act[6], when read together with the purpose of that Act as set out in section 3 and the principles provided in section 4 that are to guide the Correctional Service of Canada are, I am satisfied, sufficient authority for the proposition that, by virtue of the sentences imposed on him by a Canadian court or courts, the Applicant is in the lawful custody of the Correctional Service of Canada.
[15] Sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms read as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
...
...
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
...
...
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
(2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou
physiques.
ANALYSIS
a) Initiation of Complaints and Want of Jurisdiction
[16] Subsection 40(1) of the Canadian Human Rights Act provides that, subject to certain exceptions, an individual who has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file a complaint with the Commission. The Applicant is such an individual and CSC is such a person. Paragraph 40(5)(a) of the Canadian Human Rights Act provides that no such complaint may be dealt with by the Commission unless the alleged discriminatory act or omission constituting the alleged discriminatory practice occurred in Canada and the victim, here the Applicant, was at the time of the act or omission "...lawfully present in Canada..." among other circumstances not relevant here. There can be no question but that the Applicant, at the time of the discriminatory practices alleged by him was present in Canada. He was in fact incarcerated in a series of federal correctional institutions. There remains then the question of whether he was "lawfully present in Canada". If he was not lawfully present in Canada, the Commission is precluded from dealing with the complaint.
[17] Other exceptions to the general rule set out in subsection 40(1) of the Canadian Human Rights Act are not relevant on the facts of this matter.
b) The Ministerial Advice
[18] Subsection 40(6) provides that where a question arises under subsection 40(5) as to the "status" of an individual in relation to a complaint, the Commission shall refer the question of status to the appropriate Minister. Thereafter the Commission shall not proceed with the complaint unless the question of status is resolved out of the reference to the appropriate Minister, in favour of the Applicant.
[19] In accordance with the Order of this Court dated the 20th of October, 1999 and earlier referred to, the Commission referred the Applicant's complaint to the Minister of Citizenship and Immigration. The Minister's response is quoted earlier in these reasons. The Minister advised that the Applicant was, at the relevant time, neither a Canadian citizen nor a permanent resident of Canada. That was clearly advice as to the Applicant's "status" in Canada.
[20] But the Minister went further. She noted the deportation order outstanding against the Applicant. Based on the outstanding deportation order, she advised:
Therefore, CIC [Citizenship and Immigration Canada] takes the position that Mr. Forrest [the Applicant] was not lawfully present in Canada at the time of the alleged acts or omissions (i.e. August 1995 to the present date). ...
[21] I conclude that the foregoing sentence is not advice as to status but rather an expression of a Departmental, not a Ministerial, view as to what the expression "lawfully present in Canada", as it appears in subsection 40(5) of the Canadian Human Rights Act, means in the context of the facts of this matter. While it was certainly open to the Minister to provide gratuitous advice as to the opinion or position of her Department, that advice, not being status advice, was certainly not binding on the Commission and could not, of itself, be relied upon by the Commission to relieve it of its responsibility, if indeed such a responsibility continued to exist, for determining whether the Applicant was, at all relevant times, and on all of the facts before the Commission, an individual lawfully present in Canada. The Commission was certainly not bound or obliged to accept the Minister's and her Department's advice in this regard, nor could it determine to ignore any statutory responsibility that it continued to have and simply, without question, adopt the view of the Minister's Department.
c) Further advice to the Commission
[22] The Tribunal Record before the Court indicates that the Commission, when it arrived at the decision here under review, had before it, not only the Minister's advice as to status and the associated volunteered opinion of her Department, but the report of an Investigator within the Commission. That report, after summarizing the Applicant's complaints and reviewing the history of the complaints before the Commission, concluded with the following paragraphs:
7. Following the Federal Court order, the Minister of Citizenship and Immigration was asked to confirm the complainant's legal status in Canada. By letter dated February 28, 2000, the Minister informed the Commission that the complainant has "no status" in Canada. The letter indicates that the complainant is under an order of deportation from Canada and that the order was issued following an immigration hearing on November 23, 1995.
8. Section 40(6) of the CHRA gives the Minister of Citizenship and Immigration the jurisdiction to determine an individual's status in Canada and states that the Commission cannot proceed unless the question of status is resolved in favour of the complainant. In light of the Minister's determination that the complainant has no status in Canada, the Canadian Human Rights Commission does not have the jurisdiction to deal with the complaint.
[23] I conclude that the foregoing advice, particularly that contained in the quoted paragraph 8 is correct. As earlier noted, the Minister of Citizenship and Immigration provided the Minister with "status" advice, that being that since the Applicant is neither a Canadian citizen nor a permanent resident of Canada, he has no "status" in Canada. Further, it was not in dispute before the Court that, at all relevant times, the Applicant had no "visitor" status in Canada if, indeed, a visitor's visa confers "status" in an immigration sense. Given the Minister's "status" advice, by virtue of subsection 40(6) of the Canadian Human Rights Act, the Commission had no authority to further examine the question of whether or not the Applicant was "lawfully present in Canada" since the question of status was not resolved in favour of the Applicant. In effect, the question of lawful presence in Canada became irrelevant and the Minister's gratuitous advice in that regard was similarly irrelevant.
[24] In the result, against the appropriate standard of review, whether it be correctness or some less stringent standard, I conclude that the Commission made no reviewable error in concluding that it lacked jurisdiction to deal with the Applicant's complaints.
d) The Charter issues raised by the Applicant
[25] Sections 7 and 12 of the Charter confer rights on "everyone" and, arguably, that is "everyone" within the legislative jurisdiction of the Parliament of Canada. The legislative jurisdiction of the Parliament of Canada, within its sphere of competence, clearly extends to "everyone" within or present in Canada, and again, at least arguably, whether or not such persons are "lawfully" within or present in Canada. The same might be said in respect of section 15 of the Charter which speaks of "every individual" rather than "everyone". The distinction between "every individual" and "everyone" is of no consequence in relation to the Applicant. Thus, it is arguable that there may be a dichotomy between sections 7, 12 and 15 of the Charter on the one hand and subsections 40(5) and (6) of the Canadian Human Rights Act on the other.
[26] Unfortunately, but not surprisingly given that the Applicant was self-represented, issues arising out of this possible dichotomy were the subject of only limited argument, written and oral, before the Court. Additionally, as earlier noted, no notice of a constitutional question arising out of this matter was served in accordance with section 57 of the Federal Courts Act. In the result, the Court declines to deal with these issues.
COSTS
[27] The Applicant sought his out of pocket expenses on this application for judicial review. The Respondent sought costs, if successful, fixed in the amount of $1,500.00. In light of the result that I have reached, I am satisfied that the Respondent is entitled to some costs. That being said, in light of other costs awards outstanding against the Applicant and his impecunious state of which he spoke before the Court, I am inclined in the exercise of my discretion to fix costs at $500.00 rather than the $1,500.00 requested and further, to not make those costs payable forthwith as counsel for the Respondent urged that I do.
[28] An Order both as to substantive result and costs will go accordingly.
_________________________________
J.F.C.
Ottawa, Ontario
April 1, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-587-01
STYLE OF CAUSE: IRVINE FORREST v. ATTORNEY GENERAL
OF CANADA ET AL
PLACE OF HEARING: PETERBOROUGH, ONTARIO
DATE OF HEARING: March 18, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Gibson
DATED: April 1, 2004
APPEARANCES:
Irvine Forrest FOR APPLICANT
Sogie Sabeta FOR RESPONDENT
SOLICITORS OF RECORD:
Irvine Forrest FOR APPLICANT
Attorney General of Canada FOR RESPONDENT
[1] While nothing turns on the matter, there is some indication in the material before the Court that the Applicant's second arrival in Canada may have been in late August, 1990.
[2] See: Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 50(b) and Immigration and Refugee Protection Regulations, SOR/2002-227, s. 223.
[3] R.S.C. 1985, c. H-6.
[4] Part I of the Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[5] R.S.C. 1985, c. F-7.
[6] S.C. 1992, c. 20.