Toussaint v. Canada (Citizenship and Immigration)

Toussaint v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2009-09-04
Neutral citation
2009 FC 873
File numbers
IMM-326-09
Notes
Reported Decision
Decision Content
Date: 20090904
Docket: IMM-326-09
Citation: 2009 FC 873
Ottawa, Ontario, September 4, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
NELL TOUSSAINT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
and
LOW INCOME FAMILIES TOGETHER
and CHARTER COMMITTEE ON
POVERTY ISSUES
Interveners
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1] The Applicant, Ms. Nell Toussaint, a citizen of Grenada, came to Canada in December 1999 as a visitor. Her visitor status expired within 6 months of entering Canada and she has been without status since that time. She does not want to return to Grenada. The Applicant would like to apply to the Minister of Citizenship and Immigration (the Minister or the Respondent), pursuant to s. 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for an exemption from certain requirements of IRPA on the basis of humanitarian and compassionate (H&C) considerations. Specifically, she wants: (a) to be exempted from the requirement in s. 11 of IRPA that she must apply for permanent residence status before entering Canada; and, (b) to be granted permanent residence from within Canada on H&C grounds. The fee required to process her in‑Canada H&C application is $550, which, the Applicant claims, she cannot afford.
[2] Under cover of letter dated September 12, 2008, a Certified Canadian Immigration Consultant, acting on behalf of the Applicant, forwarded an H&C application to the Minister. The cover letter contained the following request:
On behalf of my client Ms. Nell Toussaint I am hereby making a request under section 25(1) of the Immigration and Refugee Protection Act for her to be exempted from the requirement under sections 307 and 10(1)(d) of the Immigration and Refugee Protection Regulations to pay the $550 fee for the processing of her application for permanent residency based on humanitarian and compassionate considerations (H&C) …
The basis of Ms. Toussaint’s request for this fee exemption is set out in her affidavit, which is attached. As you can see, she is indigent and unable to afford to pay the fee.
[3] In a letter dated January 12, 2009, the Administrative Officer, Case Management Branch of Citizenship and Immigration Canada (CIC) returned the application without processing for the following reasons:
Paragraph 10(1)(d) of the Immigration and Refugee Protection Regulations requires all applicants to include evidence of payment of the applicable fee. Your request for an exemption from the fees is contrary to this legislative requirement. If you wish to apply for permanent residence in Canada your application must be accompanied by the required fee.
[4] The Applicant seeks judicial review of this decision. In addition to a request that the decision of the Administrative Officer be quashed, the other key remedies sought may be stated as follows:
· An order that the Minister examine the Applicant’s circumstances to determine whether an exemption from s. 11 of the IRPA is justified on H&C grounds, without the payment of any fee;
· A declaration that ss. 307, 10(1)(d) and 66 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRP Regulations or the Regulations), which require the payment of a fee as a condition of accessing the procedure under s.25(1) of IRPA is ultra vires in that it fetters the Minister’s discretion under s. 25(1) of IRPA; and
· A declaration that ss. 307 and 10(1)(d) are inoperative or invalid as being contrary to s. 15(1) and s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter), contrary to s. 1(b) of the Canadian Bill of Rights S.C. 1960, c. 44. (Canadian Bill of Rights or Bill of Rights), and contrary to the Rule of Law and the “constitutional norm of equality”;
[5] By Order of Prothonotary Aalto, two organizations - the Charter Committee on Poverty Issues (CCPI) and Low Income Families Together (LIFT) – were granted intervener status in this application for judicial review.
II. Issues
[6] This application raises the following issues:
1. What is the applicable standard of review of the Minister’s decision not to consider waiving the Applicant’s in-Canada application fee?
2. On a proper statutory interpretation of the relevant provisions of IRPA, does s. 25 of IRPA require the Minister to consider a request to waive the fee for an in-Canada s. 25 application?
3. Are the provisions of IRPA or the IRP Regulations that purport to prevent foreign nationals, who are indigent or on social assistance, from seeking a waiver of fees for services under IRPA, invalid or inoperative on the basis of:
a) s. 7 of the Charter; or
b) s. 15 of the Charter.
4. Is the failure of the government to provide for the waiver of fees contrary to the rule of law and the common law constitutional right of access to the Courts.
[7] In her written submissions, the Applicant raised, as an issue, the possible application of certain provisions of the Canadian Bill of Rights to the facts. Since the Applicant did not address this argument during oral submissions, I have not considered the possible application of the Bill of Rights. Nevertheless, I would comment that the portion of the reasons and my conclusions relating to s. 7 of the Charter would also apply to any Bill of Rights argument advanced by the Applicant.
[8] Lastly, the Intervener LIFT focuses its issues specifically on the impact that a failure to waive fees has on the best interests of children directly affected. The Applicant has no children. Accordingly, the issue of the best interests of the child, as raised by LIFT, is not relevant to the consideration of this judicial review and any conclusions that I reach would not be determinative. This issue was, however, relevant to the situation facing two families whose applications for judicial review were heard together with this matter (Krena v. Canada (Minister of Citizenship and Immigration) (Court File No. IMM-2926-08) and Gunther v. Canada (Minister of Citizenship and Immigration) (Court File No. IMM-3045-08)). Because of the particular circumstances of each of these files, the matters were dismissed on the basis of mootness or lack of standing. Given the importance of having a proper factual foundation before the Court upon which to make important Charter determinations, I will not deal extensively with LIFT’s arguments in these Reasons for Judgment.
III. Legislative Framework
[9] I begin by stating that: “The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country” (Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289 at para. 24). Thus, Parliament has established a scheme for immigration in which all applications for permanent residence in Canada must be made from outside Canada (IRPA, s. 11(1)). However, s. 25(1) of IRPA gives the Minister the discretion to exempt persons from that requirement on the basis of H&C considerations. Section 66 of the IRP Regulations provides that such an application be made in writing accompanied by an application to remain in Canada as a permanent resident.
[10] Section 89 of the IRPA allows for the making of regulations that govern fees for services provided in the administration of IRPA and the cases in which fees may be waived by the Minister.
[11] Section 307 of the IRP Regulations sets out the fees payable for in-Canada H&C applications. A principal applicant pays $550, a spouse or an applicant 22 years of age or older also pays $550, and a family member who is less than 22 years of age pays $150.
[12] Section 10(1)(d) of the IRP Regulations states that an application may not be processed unless the applicable processing fee is paid.
[13] The full text of these relevant provisions is set out in Appendix A to these reasons.
IV. Issue #1: What is the applicable standard of review?
[14] Given the nature of the issues raised, the Minister’s decision is reviewable on the standard of correctness. In other words, was the Minister correct in his conclusion that an exemption from the fees is contrary to s. 10(1)(d) of the IRP Regulations?
V. Issue #2: Does s. 25 of IRPA require the Minister to consider a request to waive the fee for an in-Canada s. 25 application?
A. Position of the Applicant and Interveners
[15] On the issue of the proper statutory interpretation of s. 25, the position of the Applicant and the Interveners is simple. They submit that s. 25 provides that the Minister “shall”, upon request of a foreign national in Canada, examine the circumstances and may grant an exemption from “any obligation of this Act”. They argue that, since the Applicant is a foreign national in Canada and since she has requested an exemption from the requirement to pay an application fee (an obligation under the Act), the Minister must consider the waiver request on H&C grounds. This broadly stated statutory obligation of the Minister cannot be fettered, they assert, by regulation. Accordingly, their position is that ss. 307, 10(1)(d) and 66 of the IRP Regulations, which require the payment of a fee as a condition of accessing the procedure under s.25(1) of IRPA, are ultra vires.
B. Principles of Statutory Interpretation
[16] Since the first issue before me is one of statutory interpretation, it is useful to begin with an overview of the principles related to such matters. On a number of occasions, the Supreme Court of Canada has given guidance on how to approach a problem of statutory interpretation. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21, Mr. Justice Iacobucci, speaking for the unanimous Court, endorsed the statement of Elmer Driedger in Driedger on the Construction of Statutes, 2nd ed. (Toronto: Butterworths Canada Ltd., 1983) that:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[17] Accordingly, the task of the Court in interpreting legislation cannot be restricted to analysing the plain meaning of the provision in question. Further, while the statutory words must be given a "fair, large and liberal construction and interpretation as best ensures the attainment of its objectives” (Interpretation Act, R.S.C. 1985, c. I-21, s. 12), attention must be directed to the scheme and objective of the statute, the intention of the legislature, and the context of the words in issue (Rizzo, above, at para. 23). Regardless of how clear and unambiguous the words of a provision may be, further analysis must be carried out. Indeed, a failure to determine the intention of the legislature in enacting a particular provision has been found to be an error (Rizzo, above, at paras. 23, 31). It follows that, where there are conflicting but not unreasonable interpretations available, the contextual framework of the legislation becomes even more important.
[18] In short, my task cannot be limited to interpreting the individual words or phrases used in s. 25; rather, I must have regard to the context in which the words are placed, the objects of IRPA and the intention of Parliament.
[19] In considering the context of IRPA, the nature or architecture of the statutory scheme is important. In De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paragraph 23, the Court of Appeal described IRPA as "framework legislation":
That is to say, the Act contains the core principles and policies of the statutory scheme and, in view of the complexity and breadth of the subject-matter, is relatively concise. The creation of secondary policies and principles, the implementation of core policy and principles, including exemptions, and the elaboration of crucial operational detail, are left to regulations, which can be amended comparatively quickly in response to new problems and other developments. Framework legislation thus contemplates broad delegations of legislative power.
[20] In De Guzman (at paragraph 26), the Court also commented that if there is a conflict between the express language of an enabling clause and a regulation purportedly made under it, the regulation may be found to be invalid. Otherwise, courts approach with great caution the review of regulations promulgated by the Governor (or Lieutenant-Governor) in Council.
C. Analysis
[21] I begin by acknowledging that a bare reading of the words of s. 25 without reference to any other provision of IRPA may support the interpretation preferred by the Applicant and the Interveners. The “grammatical and ordinary sense” of the words identified within s. 25 by the Applicant and Interveners could be interpreted to mandate the Minister to consider the Applicant’s request for a fee waiver. However, as taught by the jurisprudence, the question before me cannot be answered without consideration of the words of s. 25 within the entire context of IRPA.
[22] In the case before me, the Applicant is in breach of the obligation of s. 11 of IRPA that she must have a visa before entering Canada. Thus, she clearly does not meet a requirement of IRPA and s. 25(1) is available to her. Pursuant to s. 25(1), upon request, the Minister must consider whether to exempt the Applicant from the s. 11 obligation. In other words, if the Applicant applies, the Minister is obliged to consider whether to exempt her from the requirement or inadmissibility criterion that prevents her from gaining permanent residence in Canada. The question before me is whether the Minister must also consider the Applicant’s request that the application fee be waived.
[23] There is no question that “Section 25 itself is very broad and covers much more than requests for an exemption to apply for a permanent visa from within Canada” (Monemi v. Canada (Solicitor General), 2004 FC 1648, 266 F.T.R. 31 at para. 37). I agree. Section 25(1) is available to foreign nationals in Canada and those who are outside Canada (albeit on slightly different terms). The Minister may, on his own initiative, examine the circumstances concerning a foreign national and exempt such person from obligations of IRPA or the Regulations. In addition to H&C considerations, taking into account the best interests of a child directly affected, the Minister may take public policy considerations into account.
[24] A review of recent jurisprudence of this Court or the Court of Appeal shows that applications under s. 25(1) have been used to seek exemptions of the following:
· the obligation of ss. 117(9)(d) of the IRP Regulations, that dependents be declared by the foreign national at the time of a grant of a permanent resident visa (Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2009] F.C.J. No. 713 (QL));
· the application of s. 35(1)(a) of IRPA that makes a foreign national inadmissible on grounds of committing a crime against humanity (see, for example, Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2009] F.C.J. No. 549 (QL));
· medical inadmissibility (see, for example, Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 1357, 51 Imm. L.R. (3d) 262);
· the criteria to be met for a permanent resident visa from outside Canada (see, for example, Nalbandian v. Canada (Minister of Citizenship and Immigration), 2006 FC 1128, 309 F.T.R. 1); and
· inadmissibility due to criminality under s. 35 of IRPA (see, for example Keymanash v. Canada (Minister of Citizenship and Immigration), 2006 FC 641, [2007] 2 F.C.R. 206).
[25] However, a broad and liberal interpretation of s. 25 does not necessarily mean that this provision is available in respect of every type of obligation that arises under IRPA or the Regulations. Section 25(1) is available as a matter of right to any foreign national in Canada “who is inadmissible or who does not meet the requirements of this Act”. From this phrase, we can see that the focus of s. 25(1) is on substantive obligations that fundamentally affect the ability of a foreign national to come to or remain in Canada. This focus is reflected in the various types of s. 25(1) decisions that have been considered by the Federal Court, as set out above.
[26] In general terms, the “exemption from any applicable criteria or obligation of this Act” logically refers to such criteria or obligations as cause the foreign national to be inadmissible or to not meet the requirements of IRPA. In my view, Parliament never intended s. 25(1) to create the possibility of exemption from administrative requirements whether established under IRPA or the IRP Regulations. To access the extraordinary benefits of s. 25(1), the foreign national must meet certain administrative requirements to make his or her “request”, including: filing a written application; providing certain documents and information; and paying the fees set by the IRP Regulations.
[27] Consistent with this view of the intention of Parliament is the inclusion in IRPA of s. 89. As noted above, s. 89 permits the enactment of regulations that govern fees for services provided in the administration of IRPA. This provision also expressly provides for the ability of the government (through the Governor in Council), by regulation, to establish cases in which fees may be waived by the Minister. Under s. 89, the government has the exclusive mandate to establish and waive fees for services. It is clear that Parliament intended that the waiver of fees be done through regulations and not through the operation of s. 25(1). This is consistent with my assessment that s. 25(1) is available in respect of substantive criteria or obligations under IRPA and not to administrative requirements.
[28] When s. 25(1) and s. 89 are read together, in the context of the legislative scheme of IRPA, the two provisions can co-exist. Each has meaning.
[29] The Applicant and Interveners refer to past practices of the Minister where fees were waived by the Minister, apparently using s. 25(1) as authority. In December 2004, the Honourable Judy Sgro, then-Minister applied a temporary fee waiver for persons affected by the Tsunami and earthquake disaster of December 26, 2004. In the news release, it was stated that “the Minister has established the following temporary public policy under section 25 of the Immigration and Refugee Protection Act”. In October 2005, a similar waiver was granted for persons affected by the Pakistani earthquake. Initially, in his Memorandum of Argument at the leave stage of this judicial review, the Minister stated that s. 25(1) gave the Minister authority to provide these general waivers of fees. In the further Memorandum of Argument, this statement was not made. The Applicant and the Interveners made much of this apparent change of positions. In my view, the Minister’s past practices and his changed position on this judicial review is of no great moment. Whether the general public policy waivers of 2004 and 2005 ought to have been done through regulation is not the question before me. I make no determination on whether the Minister’s actions in those cases were ultra vires.
[30] Moreover, the interpretation of the legislative scheme that I have found also avoids absurd results. Part 19 of the Regulations establishes the fees payable for services provided under IRPA. Those fees are wide ranging. For example, fees are established for sponsorship applications ($75), for work permits ($150), for a permanent resident card ($50), for a study permit ($125) and for certification of an immigration document ($30). If I were to accept the interpretation submitted by the Applicant and Interveners, any of the fees could be the subject of an application for waiver under s. 25. Further, any such assessment would have to take into account all H&C considerations. I suspect that the Minister would be inundated with requests for waivers of any and all fees. In addition, applicants for any service under IRPA could also seek waiver of other non-fee requirements set out in s. 10 of the IRP Regulations. That would mean that applicants could ask the Minister to waive such requirements as making an application in writing (s. 10(1)(a)) or identifying accompanying partners (s. 10(1)(e)) or providing information of the names of all family members (s. 10(2)(a)). Surely, Parliament cannot have intended that s. 25 be used in this manner.
[31] The Applicant and the Interveners submit that the relevant provisions of IRPA and the Regulations must be interpreted in a manner that is consistent with international instruments to which Canada is a signatory (De Guzman, above, at paras. 61-62). A complete response to this argument is reflected by the words of Chief Justice McLachlin, speaking for the Court in
Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 at paragraph 48:
Charter values only inform statutory interpretation where "genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute": CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14. Both readings are not equally in accordance with the intention of the IRPA. Thus it is not necessary to consider Charter values in this case.
In my view, there is no ambiguity in s. 25(1) that requires resort to Charter value assessment.
[32] In sum on this issue, I conclude that s. 25(1) does not require that the Minister consider a request to exempt a foreign national from the payment of fees established pursuant to s. 89 of IRPA and the relevant IRP Regulations. Indeed, the Minister is without authority to do so. This interpretation is apparent when s. 25(1) is read harmoniously in its entire context and in its grammatical and ordinary sense, together with the scheme of IRPA, the object of IRPA and the intention of Parliament.
[33] This interpretation does not, however, complete my analysis. Regardless of the statutory interpretation, the relevant provisions could be invalid based on the other grounds advanced by the Applicant and the Interveners.
VI. Issue #3(a): Is the failure of the government to provide for fee waiver a breach of
Section 7 of the Charter?
A. Nature of the Issue
[34] The Applicant submits that the refusal of the government to waive fees results in a situation where foreign nationals may be removed from Canada and separated from their children without consideration of the relevant H&C factors or the best interests of the children involved. This, she argues engages s. 7 Charter interests. She claims that, for persons who live in poverty and cannot afford to pay the application fee, removal without any review of their H&C grounds and the best interests of their children is inconsistent with the principles of natural justice.
[35] Section 7 of the Charter states that:
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.
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.
B. Deprivation of the right to life, liberty and security of the person
[36] The first question to be asked is whether removal of the Applicant prior to consideration of her H&C factors deprives her of her right to life, liberty or security of the person.
[37] The Applicant is not a citizen of Canada. The situation faced by Ms. Medavarski, in Medovarski, above, was similar to that of the Applicant. Because of an earlier criminal conviction, provisions of IRPA precluded Ms. Medovarski from having an assessment of H&C factors prior to her deportation. As do the Applicant and Interveners before this Court, Ms. Medovarski argued that her removal prior to an assessment of such considerations was contrary to s. 7 of the Charter. In dismissing this argument, the Supreme Court stated, at paragraph 46, “the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms”. This statement appears to be a full answer to the s. 7 arguments of the Applicant and the Interveners.
[38] Moreover, there is no evidence before me that the Applicant is facing any risk to her life, liberty or security of person upon her deportation. If that had been the case, the Applicant could have sought to remain in Canada as a Convention refugee, or a protected person. Specifically, she could have brought a claim for protection under s. 96 (the refugee protection) or s. 97 (risk of torture or cruel and unusual treatment) of IRPA. She did not. She could have applied for a pre-removal risk assessment (PRRA). She did not. Either of these assessments could have been accessed at no cost to her. From this, I can conclude two things: (a) the Applicant does not fear for her safety should she return to Grenada; and (b) she has been afforded the right to two different proceedings that could have, to a large degree, considered whether her deportation to Grenada would have deprived her of life, liberty or security of her person.
[39] For other claimants pursuing permanent residence through s. 25, most have already have had the benefit of a refugee hearing or a PRRA, with negative results. In Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, the Supreme Court concluded that a well-founded fear of persecution in Mr. Singh’s country of origin was sufficient to engage s. 7 of the Charter. For failed refugee claimants and those in receipt of a negative PRRA, a determination has been made that certain of the life, liberty and security interests are not at risk under Canada’s international obligations (in particular, United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, (the Refugee Convention) or the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Dec. 10, 1984, UNGA Res. 39/46, 39 UN GAOR Supp. (No. 51) 197 (the Convention Against Torture)). To the extent, however, that the right to life, liberty and security of the person, as contemplated by s. 7 of the Charter, may extend beyond those rights assessed during a refugee hearing or a PRRA, I will continue my analysis.
C. Fundamental Justice
[40] I turn now to a consideration of the second aspect of s. 7. Is the Applicant being deprived of her rights without application of the principles of fundamental justice? In my view, there has been no breach of fundamental justice.
[41] The jurisprudence on s. 7 has established that a "principle of fundamental justice" must fulfil three criteria (see R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571 at para. 113):
1. It must be a legal principle (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503).
2. The legal principle must be one that is "vital or fundamental to our societal notion of justice" (see Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 590). Stated in different terms, the principle must be viewed by society as “essential to the administration of justice” (see Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at para. 8 (referred to as Canadian Foundation).
3. “The principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results” (Canadian Foundation, above, at para. 8)
[42] The Applicant submits the addition of two alleged principles are engaged: consideration of H&C factors for a foreign national prior to removal, and consideration of the best interests of the child. Does either of these alleged “principles” rise to the level of principles of natural justice? In my view, they do not.
[43] The first alleged principle of fundamental justice is the right of a foreign national to an assessment of H&C factors. Unlike the “best interests of the child” (discussed below), I am not persuaded that an assessment of humanitarian and compassionate considerations is a legal principle.
[44] What is a legal principle? The words of Chief Justice McLachlin in Canadian Foundation, above, at paragraph 9 provide some guidance:
A legal principle contrasts with what Lamer J. (as he then was) referred to as "the realm of general public policy" (Re B.C. Motor Vehicle Act, above, at p. 503), and Sopinka J. referred to as "broad" and "vague generalizations about what our society considers to be ethical or moral" (Rodriguez, above, at p. 591), the use of which would transform s. 7 into a vehicle for policy adjudication.
[45] The Applicant is, in effect, seeking an appeal of her deportation on the basis that H&C considerations would warrant her remaining in Canada. In general, a foreign national has no constitutional right to enter or remain in Canada (see Singh, above, at para. 13; Chiarelli, above, at para. 24 (SCC); Medovarski, above, at para. 46).
[46] Further, a foreign national has no right to come to or remain in Canada because of her personal H&C circumstances. The situation faced by the Applicant (and others in her situation) is similar to that considered by the Supreme Court in Chiarelli, above. In that case, Mr. Chiarelli was being deported because of serious criminal convictions. By operation of the Immigration Act, 1976, S.C. 1976-77, c. 52, he was not permitted to have all of the circumstances of his situation considered by the of the Immigration and Refugee Board, Immigration Appeal Division (IAD). In other words, the IAD was not able to hear an appeal from Mr. Chiarelli on H&C grounds that could have resulted in a stay of his deportation; Mr. Chiarelli was deprived of the ability to make such submissions. With respect to the right to appeal on H&C grounds, the Court commented that Mr. Chiarelli had no substantive right to an appeal on compassionate grounds. “It is entirely within the discretion of Parliament whether an appeal on this basis is provided” (Chiarelli, above, at para. 43). In Chiarelli, the Court held that the removal of Mr. Chiarelli prior to review of compassionate factors did not amount to a breach of natural justice.
[47] If it is within the discretion of Parliament whether to provide for an H&C review prior to a deportation, it is certainly within Parliament’s discretion to establish fees to access such an appeal process. I conclude that an H&C assessment prior to deportation is not a legal principle and, thus, cannot be a principle of fundamental justice to which s. 7 applies.
[48] The second alleged principle of fundamental justice is the “best interests of the child”. This alleged principle does not apply to the Applicant; she is childless. However, the Intervener (in particular, LIFT) has intervened and provided extensive arguments on this point.
[49] In Canadian Foundation, above, the Canadian Foundation for Children, Youth and the Law (the Foundation) sought a declaration that the exemption from criminal sanction for parents or teachers who corporally punished children was unconstitutional. This was on the basis that the provision violated s. 7 of the Charter. The Foundation argued that the provision in the Criminal Code, R.S.C. 1985, c. C-46 failed to give procedural protections to children, did not further the best interests of the child, and was both overbroad and vague. In respect of the best interests of the child, Chief Justice McLachlin, writing for the majority of the Court, agreed that “the best interests of the child” was a “recognized legal principle” (Canadian Foundation, above, at para. 8). However, Chief
Justice McLachlin found that the “best interests of the child” was not a principle of natural justice (Canadian Foundation, above, at paras. 10-12).
However, the "best interests of the child" fails to meet the second criterion for a principle of fundamental justice: consensus that the principle is vital or fundamental to our societal notion of justice. The "best interests of the child" is widely supported in legislation and social policy, and is an important factor for consideration in many contexts. It is not, however, a foundational requirement for the dispensation of justice. Article 3(1) of the Convention on the Rights of the Child describes it as "a primary consideration" rather than "the primary consideration" (emphasis added). Drawing on this wording, L'Heureux-Dubé J. noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 75:
[T]he decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration.
It follows that the legal principle of the "best interests of the child" may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child's best interests. Society does not always deem it essential [page95] that the "best interests of the child" trump all other concerns in the administration of justice. The "best interests of the child", while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.
The third requirement is that the alleged principle of fundamental justice be "capable of being identified with some precision" (Rodriguez, above, at p. 591) and provide a justiciable standard. Here, too, the "best interests of the child" falls short. It functions as a factor considered along with others. Its application is inevitably highly contextual and subject to dispute; reasonable people may well disagree about the result that its application will yield, particularly in areas of the law where it is one consideration among many, such as the criminal justice system. It does not function as a principle of fundamental justice setting out our minimum requirements for the dispensation of justice.
To conclude, "the best interests of the child" is a legal principle that carries great power in many contexts. However, it is not a principle of fundamental justice.
[50] I agree and would conclude that, for the same reasons given by Justice McLachlin in Canadian Foundation, the “best interests of the child” is not a principle of fundamental justice.
D. Conclusion on this issue
[51] In conclusion on this issue, I find that the deportation of the Applicant prior to consideration of H&C factors does not engage the liberty and security issues protected by s. 7 of the Charter. In any event, since neither the assessment of H&C factors or of the best interests of the child are principles of fundamental justice to which s. 7 of the Charter applies, it follows that there is no breach of s. 7 of the Charter.
VII. Issue #3 (b): Does the failure of the government to provide for waiver of fees violate
Section 15 of the Charter?
A. Nature of the s. 15 Issue
[52] The Applicant and Interveners (in particular CCPI) advance two different arguments under s. 15(1) of the Charter. First, they submit that persons living in poverty are protected under s. 15 of the Charter; thus, the Minister’s failure to provide a fee waiver entails an improper failure to exercise the discretion available under s. 25 of IRPA. In the alternative, they assert that, by failing to provide for a fee waiver pursuant to the regulation-making authority of s. 89 of IRPA, the government violates s. 15.
[53] Section 15(1) of the Charter provides as follows:
Equality before and under law and equal protection and benefit of law
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.
Égalité devant la loi, égalité de bénéfice et protection égale de la loi
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.
[54] As I have already determined that the Minister has no discretion to waive fees under s. 25 of IRPA, the first argument fails. Thus, the question before me is directed at the failure of the government to enact, by regulation under s. 89 of IRPA, a waiver of fees for in-Canada H&C applications for persons who live in poverty. Does this failure deprive the Applicant from her right to equality under s. 15 of the Charter?
[55] The question before me is comparable to the situation before the courts in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 where the hospital system had failed to provide interpretative services for deaf patients to allow them to communicate with medical service providers. In Eldridge, as before me, there was a regulation-making authority, which had not been acted upon by the Government of British Columbia. The Supreme Court (at paragraph 77) stated that:
The provision [s. 15] makes no distinction between laws that impose unequal burdens and those that deny equal benefits. If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage of analysis, that the government would be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.
[56] Thus, I am faced with a question that could result in a determination that the government’s failure to make a distinction on the basis of poverty produces discrimination within the meaning of s. 15 of the Charter.
[57] The Applicant bears the burden of establishing, on a balance of probabilities, the elements of s. 15 discrimination (see Miron v. Trudel [1995] 2 S.C.R. 418 at para. 36).
[58] I turn now to the s. 15 analysis.
B. The s. 15 framework
[59] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 has long been considered to be the foundational jurisprudence for a s. 15 analysis. The Supreme Court of Canada called for “an analysis of the full context surrounding the claim and the claimant”. In Law v. Canada, [1999] 1 S.C.R. 497, at paragraph 88, Justice Iacobucci (writing for a unanimous court) set out guidelines that reflected three broad inquiries:
1. Does the law, program or activity, based on a personal characteristic, impose differential treatment between the claimant and others with whom the claimant may fairly claim equality?
2. Is the differentiation based on one or more of the enumerated or analogous grounds?
3. Does the differentiation amount to a form of discrimination that has the effect of demeaning the claimant’s human dignity?
[60] The Law framework was revisited In R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483. In Kapp, the Supreme Court reasserted Andrews as the seminal decision and focused on the “underlying identification of the perpetuation of disadvantage and stereotyping as the primary
indicators of discrimination” (Kapp, above, at para. 23).