Tabingo v. Canada (Citizenship and Immigration)

Tabingo v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2013-04-18
Neutral citation
2013 FC 377
File numbers
IMM-10307-12, IMM-3725-12, IMM-4866-12, IMM-5635-12, IMM-6165-12, IMM-8302-12, IMM-8669-12, IMM-8747-12
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20130418
Docket: IMM-5635-12
Citation: 2013 FC 377
Ottawa, Ontario, April 18, 2013
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
MAE JOY TABINGO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
Overview......................................................................................................................................... 1
Legislative Background................................................................................................................... 2
The Applicants................................................................................................................................. 5
Discussion........................................................................................................................................ 6
Statutory Interpretation................................................................................................................ 6
Bill of Rights............................................................................................................................... 12
Rule of Law / Unwritten Principles of the Constitution............................................................ 14
Judicial Independence................................................................................................................ 18
Applicability of the Charter....................................................................................................... 20
Life, Liberty and Security of the Person.................................................................................... 26
Equality...................................................................................................................................... 32
Evidence of Discrimination.................................................................................................. 37
Perpetuation of Stereotype................................................................................................... 41
Justification for Infringement..................................................................................................... 43
Mandamus.................................................................................................................................. 43
Humanitarian and Compassionate Relief................................................................................... 43
The Application Fees.................................................................................................................. 45
Conclusion..................................................................................................................................... 45
JUDGMENT................................................................................................................................. 47
ANNEX A: Immigration and Refugee Protection Act, SC 2001, c 27......................................... 49
ANNEX B: Canadian Bill of Rights, SC 1960, c 44..................................................................... 50
ANNEX C: Canada Permanent Residents by Source Country.................................................... 51
ANNEX D: List of Applications Determined by this Decision.................................................... 52
Overview
[1] These applications concern section 87.4 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), a recent amendment introduced by Bill C-38, known as the Jobs Growth and Long-term Prosperity Act. Subsection 87.4(1) provides that applications for permanent residence as a member of the federal skilled worker (FSW) class made before February 27, 2008 are terminated unless an officer had made a selection decision before March 29, 2012.
[2] The applicants applied for FSW permanent resident visas before February 27, 2008. They have been waiting many years for their applications to be processed and are now subject to legislation which purports to cancel their applications without further consideration. They seek an order of mandamus directing the respondent to process their applications and have filed Notices of Constitutional Question alleging that section 87.4 violates the rule of law and the Canadian Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c 11 (UK), RSC, 1985, Appendix II, No 44].
[3] Eight applicants were identified to represent approximately 1400 other individuals, all of whom had commenced applications under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, seeking similar relief. The applicants are:
a. Mae Joy Tabingo, who applied for permanent residence at the visa office in Manila, Philippines in 2005 (IMM-5635-12);
b. Habibollah Abedi, who applied for permanent residence at the visa office in Damascus, Syria in 2006 (IMM-8669-12);
c. Maria Sari Teresa Borja Austria, who applied for permanent residence at the visa office in Manila, Philippines in 2005 (IMM-10307-12);
d. Ali Raza Jafri, who applied for permanent residence at the visa office in Islamabad, Pakistan in 2007 (IMM-4866-12);
e. Zafar Mahmood, who applied for permanent residence at the visa office in Islamabad, Pakistan in 2006 (IMM-8302-12);
f. Sumera Shahid, who applied for permanent residence at the visa office in Islamabad, Pakistan in 2007 (IMM-3725-12);
g. Fang Wei, who applied for permanent residence at the visa office in Hong Kong, People’s Republic of China in 2007 (IMM-6165-12); and
h. Yanjun Yin, who applied for permanent residence at the visa office in Beijing, People’s Republic of China in 2007 (IMM-8747-12).
[4] For the reasons that follow, the applications are dismissed.
Legislative Background
[5] The FSW category falls within the economic class of immigrants who, pursuant to subsection 12(2) of the IRPA, are selected based on their ability to become established in Canada. The economic class also includes business immigrants, provincial and territorial nominees, the Canadian experience class and live-in caregivers, as well as their spouses and dependants.
[6] Section 75 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) sets out the minimum requirements for immigration as a FSW. Sections 76 to 83 of the Regulations detail the selection criteria used to determine whether an applicant is able to become economically established in Canada.
[7] The number of FSW applications has consistently exceeded both Citizenship and Immigration Canada’s (CIC) processing capacity and the number of immigrants permitted under the annual immigration levels plan. It could take many years for an application to be reached, let alone assessed and the necessary information updated. This delay made it difficult to align a candidate’s experience and skills to Canada’s current labour market needs, or so it is contended by the respondent. The ensuing backlog of FSW applications has been a concern of CIC for a number of years.
[8] To address this problem, the IRPA was amended in February of 2008 to introduce section 87.3. Section 87.3 authorized the Minister of Citizenship and Immigration (the Minister) to issue Ministerial Instructions regarding the priority in which applications would be processed, and removed the obligation to process every application received. The Ministerial Instructions provided for a triage of applications according to revised eligibility criteria, including the establishment of categories of applicants and quotas. However, and of importance for the purposes of these proceedings, the Ministerial Instructions only applied to applications submitted after February 27, 2008.
[9] The first set of Ministerial Instructions was unsuccessful in restraining the growth of applications and reducing the backlog. A second set of Ministerial Instructions was thus introduced. The second set imposed a global cap on FSW applications; a maximum of 20,000 applications (excluding those with an arranged employment offer) were to be processed each year. Within that cap, a maximum of 1,000 applications per occupational category were to be processed each year. Applications exceeding those limits would be returned unprocessed. A third set of Ministerial Instructions lowered this cap to 10,000 FSW applications per year and 500 per occupation.
[10] The Ministerial Instructions had two consequences. First, the annual caps on total applications prevented the backlog from growing. Second, the Instructions created a hierarchy of processing priority. Applications received under the third Ministerial Instructions were given the highest priority, followed by applications received under the second and then the first Ministerial Instructions and finally, applications from before February 27, 2008. The Ministerial Instructions slowed, but did not completely halt, the processing of applications from before February 27, 2008.
[11] CIC also attempted to reduce the backlog by confirming whether applicants were still interested in immigrating to Canada. In 2009, CIC sent letters to pending FSW applicants offering to return the application fee if applicants wished to withdraw their application. These letters stated; “No further offers to return your fee will be sent.”
[12] By April, 2011 the backlog had been reduced by 50%. Despite this progress, the government determined that further measures to eliminate the backlog were required.
[13] Before Bill C-38 received Royal Assent, CIC issued Operational Bulletin 400, which instructed that processing should not commence or continue for any FSW application received before February 27, 2008 for which a selection decision had not been made before March 29, 2012. The application of this bulletin was successfully challenged on the grounds that it implemented proposed legislation that had not yet become law. CIC subsequently issued Operational Bulletin 413, stating that managers must continue processing all FSW applications until Bill C-38 came into force.
[14] Bill C-38 received Royal Assent on June 29, 2012. CIC issued Operational Bulletin 442 to provide guidance on its implementation. Bulletin 442 provided that applications were terminated in two situations: (1) if an officer had not made a selection decision prior to March 29, 2012; or (2) if an officer made a selection decision on or after March 29, 2012 and the application had not been finalized as of Royal Assent. This is, in fact, a subset of the first situation.
The Applicants
[15] The applicants share the common characteristic of having their FSW applications terminated. The eight applicants are citizens of diverse nationalities and applied at different Canadian visa posts, including Islamabad, Beijing, Manila and Damascus. As noted, the eight applicants represent, in turn, several thousand FSW applicants who have had their applications terminated and who have commenced applications for judicial review.
[16] The applicants, collectively, raise the following issues:
a. Whether section 87.4 applies retrospectively and terminated the applications upon its coming into force;
b. Whether subsections 1(a) and 2(e) of the Canadian Bill of Rights, SC 1960, c 44 apply to provide procedural safeguards;
c. Whether section 87.4 is compliant with the rule of law;
d. Whether section 87.4 respects judicial independence;
e. Whether section 87.4 is compliant with the Charter;
f. Whether the Court may issue an order for mandamus;
g. Whether the applicants may request humanitarian and compassionate relief;
h. Whether section 87.4 complies with the Financial Administration Act, RSC 1985, c F-11; and
i. Whether the applicants are entitled to interest on their application fees.
Discussion
Statutory Interpretation
[17] The first, and perhaps most significant issue, is that of statutory interpretation. The applicants submit that section 87.4 (Annex A), properly construed, does not apply retrospectively to interfere with vested rights. Further, they submit that it does not operate to terminate the applications as a matter of law, but rather that individualized adjudication must follow to determine what applications the provision in fact captures; put otherwise, the applications remain extant until a subsequent administrative action or adjudicative decision is made.
[18] As I will explain, these arguments cannot be sustained. It is evident, on a principled reading of the provision, that section 87.4 was intended to terminate the applications upon its coming into force. This requires that it apply retrospectively, cancelling any entitlement the applicants may have had to have their applications considered.
[19] The modern approach to statutory interpretation is set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), p 87: “…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.” As a corollary to this, when the language of the statute is precise and unequivocal, the ordinary meaning of the words plays a dominant role in the interpretive process: Celgene Corp v Canada (Attorney General), 2011 SCC 1, [2011] 1 SCR 3, para 21.
[20] Section 12 of the Interpretation Act, RSC 1985, c I-21 also instructs that:
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
12. Tout texte est censé apporter une solution de droit et s’interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet.
[21] When determining what Parliament or the legislature intended, a court may reference the various ancillary principles of statutory interpretation. The applicants urge this Court to apply the presumption against interference with vested rights, the presumption against retrospectivity and the presumption that the legislature does not intend absurd or inequitable results. For the purpose of the statutory interpretation question I will assume that the applicants had a vested right to the processing of their application.
[22] Courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear. However, when a statute is unambiguous, there is no role for presumptions or interpretive aids, and the courts may not apply any of the interpretive presumptions noted earlier: Professional Institute of the Public Service of Canada v Canada (Attorney General), 2012 SCC 71, paras 95, 159-160; British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, para 71; Gustavson Drilling (1964) Ltd v Canada (Minister of National Revenue), [1977] 1 SCR 271.
[23] Here, the ordinary meaning of the provision governs. The meaning and effect of the word “terminated” is clear. Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications. The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness. The three presumptions relied on by the applicants are displaced by the clarity of Parliament’s intention. Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee.
[24] The applicants point to various terms in section 87.4 which they contend are ambiguous and vague. In particular, the applicants identify the terms “selection criteria” and “other requirements applicable to that class” as undefined and as having multiple meanings. Additionally, the applicants argue that preliminary assessments are made at various stages in the processing of an application and therefore it is not clear what constitutes a selection decision and when it arises. Individualized evaluation is thus required.
[25] The wording does not demonstrate any ambiguity such that presumptions are triggered.
[26] The term “selection criteria” is used elsewhere in the IRPA and Regulations. Section 70 of the Regulations provides that a visa officer shall issue a permanent resident visa if it is established that a foreign national meets various conditions, including the “selection criteria”. Section 76 of the Regulations is titled “Selection Criteria” and provides the criteria on which applicants will be assessed. When read in context, as it must, this term is not vague.
[27] The phrase “other requirements applicable to that class” is also familiar to the Regulations. Satisfying such other requirements is a precondition for obtaining permanent residence visas and status in sections 65.1, 70 and 72 of the Regulations. The “other requirements” would include, for example, the minimum requirements set out in section 75 of the Regulations.
[28] It is apparent from the plain reading of the section that only the final decision given by an officer qualifies as a selection decision. When an application is brought forward for processing, applicants are asked to provide updated forms and supporting documents. At this stage staff at the visa office perform an initial paper screening of the file. The file is then forwarded to an officer who decides whether the applicant meets the selection criteria and other requirements applicable to the FSW class. The language of subsection 87.4(1) specifically refers to this decision, as it is the only one made under the IRPA by an officer.
[29] Having determined that section 87.4 is intended to operate retrospectively, the question remains whether the FSW applications at issue were terminated by operation of law when section 87.4 came into force, or whether the applications are to be terminated following an individualized assessment and decision.
[30] The respondent takes the position that the applications were terminated by operation of law at the time of Royal Assent, on June 29, 2012. The applicants submit that the termination only takes effect once an officer determines whether section 87.4 applies. I conclude that what subsection 87.4(1) entails is a non-discretionary application of the law to incontestable facts.
[31] The applicants’ position is premised on the language of section 87.4, contending it necessitates a decision-making process. As I have previously found, the language in section 87.4 is clear. Section 87.4 creates objective, factual criteria for termination: (1) the application was made before February 27, 2008; and (2) an officer has not made a selection decision before March 29, 2012. These conditions either existed or did not exist for each application as of the date of Royal Assent. The legislation does not contemplate any subsequent adjudicative process, nor does it authorize the exercise of judgment or discretion in applying the law to each application. An officer is not entitled to consider an applicant’s unique circumstances or to weigh various factors. No new factual determination must be made other than to identify whether or not the file contains a selection decision.
[32] It was only necessary for CIC to identify, through an administrative review, which applications had been terminated. This is distinguishable from an adjudicative process whereby an officer would decide whether to terminate an application. Again, section 87.4 entails a non-discretionary application of law to verifiable and incontrovertible facts.
[33] The applicants’ statutory interpretation argument also fails when viewed through the lens of section 12 of the Interpretation Act. If the files are not terminated, as a matter of law, but terminated only upon some subsequent assessment, then the plain and obvious meaning of section 87.4 would be undermined.
[34] The applicants point to CIC’s Operational Bulletin 442 which provides that applicants who had not received a selection decision prior to March 29, 2012 but who had subsequently received a selection decision and had their application finalized before June 29, 2012 are not affected by section 87.4. This ensures that even if an application should have been terminated by section 87.4, i.e., captured by having been decided during the transition period, the positive selection decision stands if it was made before section 87.4 became law.
[35] In my view, if the FSW application had been determined before Bill C-38 received Royal Assent then there was no pending application for section 87.4 to terminate. It ceased to be “pending”. It was now spent. Section 87.4 only purports to terminate applications, not an applicant’s file indicating that he or she has been accepted, much less a permanent residence visa once it has been issued. Operational Bulletin 442 is consistent with this interpretation.
[36] Finally, the applicants submit that there must be some individualized decision so that the applicants could seek judicial review in the event that their application was terminated in error. I disagree. An applicant may apply to this Court for an order of mandamus to compel the Minister to process an application which had been identified as terminated if in fact a positive selection decision had been made. The Court will then determine whether the application is in fact caught by section 87.4. If not, then it was never terminated (only mistakenly classified as terminated) and an order for mandamus may follow. Accordingly, applicants have a process for redress if their application is identified as terminated in error.
[37] My conclusion on the issue of statutory interpretation is that section 87.4 terminates the applications at issue by operation of law. The presumptions put forward by the applicants do not apply and there is no requirement for individualized adjudication. Therefore, the application for mandamus must fail unless the legislation is unconstitutional or contrary to the Bill of Rights.
Bill of Rights
[38] The Bill of Rights was enacted in 1960 as a statute of Parliament. While it has diminished importance in light of the Charter, as the Charter does not contain a general guarantee of “due process” or any protection for economic rights, the Bill of Rights retains continued significance in the landscape of Canadian jurisprudence.
[39] The applicants submit that section 87.4 violates their rights under subsection 1(a) of the Bill of Rights, which protects the right not to be deprived of property except by due process of law and subsection 2(e), which guarantees a fair hearing for the determination of rights and obligations (Annex B).
[40] My conclusion that there is no adjudicative process involved in terminating the applications is determinative of this issue. The due process protections of the Bill of Rights do not apply to legislative enactments: Authorson v Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40, paras 42-46 and 59 and, as there is no individualized decision to terminate the applications, the Bill of Rights is inapplicable. The Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations.
[41] In Authorson, disabled war veterans relied on the Bill of Rights to claim interest on pension funds held in trust on their behalf by the federal government. Parliament had enacted legislation which barred any claim for interest that might otherwise be payable on the funds prior to 1990. The Supreme Court of Canada agreed that the effect of the statute was to take a property interest from a vulnerable group, in disregard of the government’s fiduciary duty. However, this taking was within the power of Parliament.
[42] The Supreme Court of Canada rejected the argument that subsection 1(a) was triggered by the deprivation of property and the bar of judicial recourse. Major J, speaking for the Court, wrote:
What procedural protections for property rights are guaranteed by due process? In my opinion, the Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal.
[…]
Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960. Certain procedural rights in this regard have long been recognized. In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension. Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required. For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces. However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits.
[43] To conclude, the language of Authorson is dispositive of this issue:
The respondent submitted that the clear, uncontested interpretation of s. 5.1(4) of the Department of Veterans Affairs Act is that it is an expropriation of disabled veterans’ interest on DVA-administered pensions, and as such is inoperative. But no adjudicative procedure is necessary for the non-discretionary application of a law to incontestable facts. A taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him.
[44] While I accept that the applicants have incurred various expenses in making their FSW applications this is not equivalent to a deprivation of property. Rather, the applicants have freely chosen to apply to come to Canada and to incur the related expense. Their FSW application did not provide any right to, or recognizable legal interest in, the potential future economic opportunities that might come their way if they were successful. At best, the applicants possessed a mere chance to gain access to economic opportunities in Canada. No economic right had vested and any opportunity remained prospective, contingent and speculative. In sum, a pending FSW application does not constitute property within the meaning of subsection 1(a) of the Bill of Rights. Even if it was considered property, the Bill of Rights does not prevent the expropriation of property without compensation by the passage of unambiguous legislation.
Rule of Law / Unwritten Principles of the Constitution
[45] The applicants contend that section 87.4 is unconstitutional. They argue that the provision violates the rule of law because it is vague and has retrospective effects.
[46] Three principles underlie the rule of law. First, the law is supreme over both the government and individuals. Second, law must be created and maintained to preserve and embody a normative order. Third, the relationship between individuals and the state must be regulated by law.
[47] None of these principles speak directly to the content of legislation. In consequence, as noted by the Supreme Court of Canada “it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation … based on its content”. The rule of law is primarily concerned with the relationship between the executive, legislative and judicial branches of government, and the legislature is only constrained in the sense that it must comply with the procedural requirements for enacting, amending and repealing legislation: Imperial Tobacco Canada, paras 58-60.
[48] There has been some debate as to the extent to which the rule of law and unwritten principles of the Constitution have embedded within them principles that would permit the invalidation of legislation on the basis of its content. This issue was joined in Babcock v Canada (Attorney General), 2002 SCC 57, [2002] 3 SCR 3. Section 39 of the Canada Evidence Act, RSC 1985, c C-5, barred the production of documents and their admission into evidence upon certification by the Clerk of the Privy Council that they were confidences of the Queen’s Privy Council. It was contended that the unfairness of creating special evidentiary rules that favoured the Crown and the absence of judicial oversight of the certification process offended the rule of law. The Supreme Court of Canada rejected the argument: Babcock, para 57.
[49] The Supreme Court of Canada returned to the question three years later in Imperial Tobacco (paras 61-64) concluding that there is no constitutional guarantee that law be general in character and not confer special privileges on the government:
Nonetheless, considerable debate surrounds the question of what additional principles, if any, the rule of law might embrace, and the extent to which they might mandate the invalidation of legislation based on its content.
[…]
This debate underlies Strayer J.A.’s apt observation in Singh v. Canada (Attorney General), 2000 CanLII 17100 (FCA), [2000] 3 F.C. 185 (C.A.), at para. 33, that “[a]dvocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be.”
The appellants’ conceptions of the rule of law can fairly be said to fall at one extreme of the spectrum of possible conceptions and to support Strayer J.A.’s thesis. They submit that the rule of law requires that legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial. And they argue that the Act breaches each of these requirements, rendering it invalid.
A brief review of this Court’s jurisprudence will reveal that none of these requirements enjoy constitutional protection in Canada.
[50] With the exception of criminal offences and sanctions there is no requirement that legislation be prospective, even though retrospective and retroactive legislation can overturn settled expectations and be perceived as unjust: Imperial Tobacco, paras 69-72. Whatever personal and economic opportunities a pending FSW application may represent to an applicant, it does not equate with, or possess the characteristics of an interest that would preclude its termination on the basis of the rule of law. Here, Parliament has expressed a clear intention that section 87.4 apply retrospectively. Though this may be perceived as unjust, it does not violate the rule of law.
[51] Section 87.4 is also not contrary to the rule of law due to vagueness. I have found that its meaning is readily apparent on a plain and obvious reading. Second, vagueness has only been used to invalidate legislation in exceedingly rare circumstances and then only in a criminal law context: R v Spindloe, 2001 SKCA 58, para 78.
[52] As was the case in Imperial Tobacco, the applicants have argued for an understanding of unwritten constitutional principles that would expand on the rights specifically provided for in the written Constitution. In particular, the applicants have argued that, embedded in the rule of law, there is a broader equality right than that provided for in section 15 of the Charter. Acceptance of this argument would render the written constitutional rights redundant. The recognition of unwritten constitutional principles is not an invitation to dispense with the written text of the Constitution: Reference re Secession of Quebec, [1998] 2 SCR 217, para 53, and, while the parameters of the unwritten principles of the Constitution remain undefined, they must be balanced against the concept of Parliamentary sovereignty which is also a component of the rule of law: Warren J Newman, The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation (2005) 16 NJCL 175.
[53] The argument predicated on the rule of law and unwritten principles of the Constitution is therefore dismissed.
Judicial Independence
[54] Although unwritten, judicial independence is a foundational principle of the Constitution. Judicial independence safeguards the judiciary’s freedom to render decisions based solely on the requirements of the law, without interference from the executive branches of government. There are three essential conditions of judicial independence: security of tenure, financial security and administrative independence. The applicants have not identified a basis on which section 87.4 interferes with any of the essential conditions of judicial independence.
[55] In Imperial Tobacco, the Supreme Court of Canada emphasized that judicial independence does not include the freedom to apply only laws of which the judiciary approves. This would require “a constitutional guarantee not of judicial independence, but of judicial governance.”
[56] The rule of law mandates that the government is not beyond the law. However, the government is only bound by the law as it exists from time to time. Subject always to the Constitution, both written and unwritten, Parliament may change the law and this includes barring certain claims through limitation and Crown immunity statutes: Bacon v Saskatchewan Crop Insurance Corp, [1999] 11 WWR 51 (Sask CA), leave denied [1999] SCCA No 437.
[57] The applicants argue that section 87.4 unduly interferes with the courts by prescribing certain outcomes. They draw support for this from subsection 87.4(3) which they argue excludes any form of judicial supervision, and subsection 87.4(5) which bars any right of recourse against the Crown for damages.
[58] This argument misunderstands the origins and purpose of judicial independence. Parliament is free to craft legislation and the courts must, assuming it is constitutional, interpret and apply that legislation as written. It is not interference with judicial independence for Parliament to write legislation which leads to a certain outcome when properly applied. This is the proper function of lawmaking, of which there are many examples. Authorson, Imperial Tobacco, and Babcock involved legislative change or adaptation to what would otherwise be decided through judicial process. In Authorson, causes of action to recover interest were barred; in Imperial Tobacco, a duty of care and causation were decreed by legislation and in Babcock, relevant evidence could be rendered inadmissible by a certificate of the Clerk of the Privy Council.
[59] As I have previously explained, if any applicants believe their applications were improperly identified as terminated and can point to a positive selection decision before March 29, 2012, they may apply to the Court for an order of mandamus. The rule of law mandates that all administrative action must have its source in law. If CIC improperly identifies an application as terminated and refuses to process it, that action would be without a source in law and therefore amenable to the Court’s jurisdiction. Additionally, this Court is not prevented from scrutinizing the legislation to ensure it is compliant with the Constitution and the Bill of Rights. Section 87.4 does not bar access to the courts.
[60] Finally, Crown immunity clauses, such as that contained in subsection 87.4(5), are not unconstitutional unless the statute itself is ultra vires on division of powers grounds: Alberta v Kingsway General Insurance Company, 2005 ABQB 662, para 67. In Kingsway General Insurance Company, the legislature of Alberta passed legislation to immunize the government from liability resulting from insurance reforms, targeting a specific action which was pending before the Court of Queen’s Bench. The Court determined that the legislation was within the competence of the legislature and did not violate the rule of law even though it barred a specific, pending action.
Applicability of the Charter
[61] The applicants contend that section 87.4 infringes their rights under sections 6, 7 and 15 of the Charter. At the hearing, the applicants abandoned their reliance on subsection 2(d) of the Charter, the right to freedom of association.
[62] As a threshold issue, there is the question whether the applicants, as non-citizens residing outside of Canada, are entitled to the protection of the Charter. This question is one of application of the Charter, and not to be confused or conflated in its analysis with that of standing. The applicants are “directly affected” by the passage of Bill C-38, as to have sufficient legal interest to commence the applications. Whether the Charter applies or extends to non-residents is a discrete legal question.
[63] Without a doubt, as legislation enacted by Parliament, section 87.4 must be Charter compliant. If not, a remedy is available under section 52 of the Constitution Act, 1982. Similarly, Charter compliant legislation must be administrated in a manner consistent with the Charter. If not, a remedy is available under section 24 of the Charter. In all cases, the central and controlling frame of analysis is that constitutionality is governed by effect and consequence, not legislative intent. In this case, the repercussions and effects of section 87.4 are outside of Canada, and fall upon nationals of other countries. At issue, therefore, is whether section 7 and section 15 rights are vested in foreign, non-resident applicants. The legislation would not violate the applicants’ Charter rights if they do not have those rights to begin with.
[64] Section 6 of the Charter is explicitly limited to citizens and permanent residents. Therefore, the applicants’ reliance on that section must fail. However, section 7 and section 15 do not contain that explicit limitation, applying to “everyone” and “every individual” respectively.
[65] There has been clear guidance from the Supreme Court of Canada and the Federal Court of Appeal as to when the Charter applies to the actions of Canadian officials outside of Canada. The present case has a significant distinction from these authorities. The issue here is not whether the Charter applies to officers and agents of the Government of Canada when abroad, but whether it affords rights to foreign nationals outside of Canada who are affected only by legislative change of Parliament. The weight of the case law indicates that non-citizens outside of Canada may not claim the protection of the Charter, absent exceptional circumstances involving the actions of Canadian officials or agents abroad.
[66] Justice Edmond Blanchard considered this issue in Slahi v Canada (Minister of Justice), 2009 FC 160 (aff’d 2009 FCA 259), in the context of a section 7 Charter claim brought by foreign nationals who had been detained at Guantanamo Bay and questioned there by Canadian officials. Justice Blanchard conducted a detailed review of the law on extra-territorial application of the Charter, starting with Singh v Minister of Employment and Immigration, [1985] 1 SCR 177. In Singh, it will be recalled, Justice Wilson accepted that the term "everyone" in section 7 of the Charter “includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law”.
[67] Justice Blanchard also noted Justice L'Heureux-Dubé's dissenting reasons in R v Cook, [1998] 2 SCR 597 wherein she noted:
I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word "everyone". Rather, I think t