r v. Canada, 2013 FC 377

[2014] 4 F.C.R. 150 IMM-5635-12 2013 FC 377 Mae Joy Tabingo ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Tabingo v. Canada (Citizenship and Immigration) Federal Court, Rennie J.—Toronto, January 14, 15 and 16; Ottawa, April 18, 2013. Editor’s Note: This decision has been affirmed on appeal ( 2014 FCA 191 ). The reasons for judgment, handed down August 21, 2014, will be published in the Federal Courts Reports .

Citizenship and Immigration — Status in Canada — Permanent Residents — Applications seeking order of mandamus directing respondent to process applications for permanent residence as members of federal skilled worker (FSW) class — Immigration and Refugee Protection Act (IRPA), s. 87.4 providing that FSW applications made before February 27, 2008 terminated unless selection decision made before March 29, 2012 — Applicants herein applying before February 27, 2008 — Whether s. 87.4 applying retrospectively, complying with rule of law, judicial independence — Applications terminated, no legal duty to continue processing, no order for mandamus warranted — Word “terminated” clear — S. 87.4 explicitly designed to apply retrospectively — Parliament’s intention displacing presumptions against interference with vested rights, retrospectivity, presumption that legislature not intending absurd or inequitable results — IRPA, s. 87.4(1) referring to officer’s decision as to whether applicant meeting selection criteria — Applications terminated through administrative review, not adjudicative process — S. 87.4 not terminating accepted applications — S. 87.4 not violating rule of law — Excepting criminal offenses, sanctions, no requirement that legislation be prospective — Parliament clearly intending that s. 87.4 apply retrospectively — Meaning of s. 87.4 readily apparent, not vague — S. 87.4 not interfering with conditions of judicial independence — Crown immunity clauses not unconstitutional — Questions certified — Applications dismissed.

Bill of Rights — Applications seeking order of mandamus directing respondent to process applications for permanent residence as members of federal skilled worker (FSW) class — Immigration and Refugee Protection Act (IRPA), s. 87.4 providing that FSW applications made before February 27, 2008 terminated unless selection decision made before March 29, 2012 — Whether ss. 1(a), 2(

e) of Bill of Rights applying to provide procedural safeguards — No adjudicative process involved in terminating applications — Pending FSW application not constituting property within meaning of s. 1(a) — Bill of Rights not preventing expropriation without compensation by passage of unambiguous legislation.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Applications seeking order of mandamus directing respondent to process applications for permanent residence as members of federal skilled worker (FSW) class — Immigration and Refugee Protection Act (IRPA), s. 87.4 providing that FSW applications made before February 27, 2008 terminated unless selection decision made before March 29, 2012 — Whether s. 87.4 complying with Charter, s. 7 — Case law not supporting proposition that FSW applications establishing sufficient nexus with Canada to extend s. 7 reach to applicants — No s. 7 interests engaged by s. 87.4 — Ability to immigrate as member of economic class not fundamental choice relating to personal autonomy, not engaging life or liberty interests.

Constitutional Law — Charter of Rights — Equality Rights — Applications seeking order of mandamus directing respondent to process applications for permanent residence as members of federal skilled worker (FSW) class — Immigration and Refugee Protection Act (IRPA), s. 87.4 providing that FSW applications made before February 27, 2008 terminated unless selection decision made before March 29, 2012 — Whether s. 87.4 complying with Charter, s. 15 — Case law not supporting proposition that FSW applications establishing sufficient nexus with Canada to extend s. 15 reach to applicants — Country of residence not analogous ground of discrimination under s. 15 — Two-part test in Withler v.

Canada (Attorney General) applied — Variations in processing rates not necessarily indicating distinction on enumerated or analogous ground — No evidence s. 87.4 perpetuating disadvantage through prejudice, stereotype. These were applications seeking an order of mandamus directing the respondent to process the applicants’ applications for permanent residence as members of the federal skilled worker (FSW) class. These applications concerned

section 87.4 of the Immigration and Refugee Protection Act (IRPA), an amendment introduced by the Jobs, Growth and Long-term Prosperity Act (Bill C-38). Subsection 87.4(1) provides that applications for permanent residence as a member of the FSW class made before February 27, 2008 are terminated unless an officer made a selection decision before March 29, 2012. The applicants, who represent approximately 1 400 other individuals, applied for FSW permanent resident visas before February 27, 2008. They were thus subject to

section 87.4, which terminated their applications without further consideration. The main issues were whether

section 87.4 applies retrospectively, whether paragraphs 1(

a) and 2(

e) of the Canadian Bill of Rights (Bill of Rights) apply to provide procedural safeguards, and whether

section 87.4 complies with the rule of law, with judicial independence, and with the Canadian Charter of Rights and Freedoms (Charter), more specifically with sections 7 and 15 . Held , the applications should be dismissed. The applications were terminated and the respondent had no legal duty to continue to process them. There could be no order for mandamus . 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. 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,

regardless of any perceived unfairness. The clarity of Parliament’s intention displaced the three presumptions relied on by the applicants (i.e. the presumption against interference with vested rights, the presumption against retrospectivity, and the presumption that the legislature does not intend absurd or inequitable results). To interpret the

section otherwise would leave it without any effect beyond refunding the application fee. The language of subsection 87.4(1) of IRPA specifically refers to an officer’s decision as to whether an applicant meets the selection criteria and other requirements applicable to the FSW class. 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.

Section 87.4 entails a non-discretionary application of law to verifiable and incontrovertible facts, and only purports to terminate applications, not an applicant’s file indicating that he or she has been accepted, much less a permanent resident visa once it has been issued. Operational Bulletin 442, which was issued by CIC to provide guidance on the implementation of Bill C-38, is consistent with this

interpretation. The Court’s conclusion that there is no adjudicative process involved in terminating the applications was determinative of whether the Bill of Rights applied herein. A pending FSW application does not constitute property within the meaning of paragraph 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.

Section 87.4 does not violate the rule of law. 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. Here, Parliament has expressed a clear intention that

section 87.4 applies retrospectively.

Section 87.4 is also not contrary to the rule of law due to vagueness. Its meaning is readily apparent on a plain and obvious reading, and vagueness has only been used to invalidate legislation in exceedingly rare circumstances and then only in a criminal law context. The applicants did not identify how

section 87.4 would interfere with any of the essential conditions of judicial independence, i.e. security of tenure, financial security and administrative independence.

Section 87.4 does not bar access to the courts. Finally, Crown immunity clauses, such as that contained in subsection 87.4(5) or IRPA , are not unconstitutional unless the statute itself is ultra vires on division of powers grounds. With respect to the Charter , a threshold issue was whether

section 7 and

section 15 rights were vested in foreign, non-resident applicants. The legislation would not violate the applicants’ Charter rights if they did not have those rights to begin with. The case law does not support the proposition that the FSW applications establish a sufficient nexus with Canada to extend the reach of sections 7 and 15 of the Charter. In this case, there was no question of the extra territorial application of the Charter as an adjunct of the actions of Canadian officials abroad, nor was there non-compliant administration of the legislation. As to

section 7 of the Charter, no such interests were engaged by

section 87.4. The ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy that would engage

section 7. While it may have life-altering consequences, the possibility of immigrating to Canada as a successful FSW applicant does not engage life or liberty interests. The voluntary character of the applicants’ decision to apply for a FSW visa, and to put major life decisions in abeyance pending the outcome, was determinative of the question as to whether security of the person was engaged. The applicants experienced the ordinary stresses and anxieties that accompany an application to immigrate. All

section 87.4 did was terminate the opportunity. Turning to

section 15 of the Charter, country of residence is not an analogous ground of discrimination thereunder. The two-part test in Withler v. Canada (Attorney General) (i.e. whether the law creates a distinction based on an enumerated or analogous ground; and whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping) was applied. While the processing rates varied between visa offices, such that

section 87.4 had a differential impact and outcome depending on where an applicant applied, this did not necessarily indicate a distinction based on an enumerated or analogous ground. As to the second part of the

section 15 test, the evidence did not indicate that

section 87.4 perpetuates a disadvantage through prejudice or stereotyping. Questions were certified as to whether subsection 87.4(1) terminates the applications described therein upon its coming into force, and if not, whether the applicants are entitled to mandamus ; whether the Bill of Rights mandates notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) ; and whether

section 87.4 is unconstitutional. STATUTES AND REGULATIONS CITED Canada Evidence Act , R.S.C., 1985, c. C-5, s. 39. Canadian Bill of Rights , R.S.C., 1985, Appendix III, ss. 1( a ), 2( e ). Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2( d ), 6, 7, 15, 24. Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Federal Courts Act , R.S.C., 1985, c. F-7, s. 18.1. Federal Courts Rules , SOR/98-106, r. 397. Financial Administration Act , R.S.C., 1985, c. F-11, s. 19(2). Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 12(2), 25 , 25.2 , 74 ( d ), 87.3 , 87.4 . Immigration and Refugee Protection Regulations , SOR/2002-227, ss. 11(1), 65.1 , 70 , 72 , 75 to 83 .

Interpretation Act , R.S.C., 1985, c. I-21, s. 12. Jobs, Growth and Long-term Prosperity Act , S.C. 2012, c. 19.

CASES CITED followed: Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40. applied: Slahi v. Canada (Justice), 2009 FC 160, 186 C.R.R. (2d) 160, affd 2009 FCA 259, 394 N.R. 352; Chiarelli v. Canada (Minister ofEmployment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Medovarski v. Canada(Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R.539; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396. distinguished: Canada (Justice) v.

Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R. (2d) 25; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R 203, (1999), 173 D.L.R. (4th) 1. considered: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Babcock v. Canada (Attorney General), 2002SCC 57, [2002] 3 S.C.R. 3; Alberta v.

Kingsway General Insurance Company, 2005 ABQB 662, 258 D.L.R. (4th) 507; Singh et al. v.Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422; R. v. Cook, (SCC), [1998] 2 S.C.R. 597, (1998), 164 D.L.R. (4th) 1; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; AmnestyInternational Canada v. Canada (Chief of the Defence Staff), 2008 FC 336, [2008] 4 F.C.R. 546, affd 2008 FCA 401, [2009] 4 F.C.R.149; Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th)1; Quebec (Attorney General) v.

A, 2013 SCC 5, [2013] 1 S.C.R. 61; Crease v. Canada, (FC), [1994] 3 F.C. 480(T.D.); Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th) 385; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315, (1994), 122 D.L.R. (4th) 1; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296, (1989), 48 C.C.C.(3d) 8; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (1989), 56 D.L.R. (4th) 1. referred to: Celgene Corp. v.

Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3; Professional Institute of the Public Service of Canada v.Canada (Attorney General), 2012 SCC 71, [2012] 3 S.C.R. 660; Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271, (1975), 66 D.L.R. (3d) 449; R. v. Spindloe, 2001 SKCA 58 , [2002] 5 W.W.R. 239;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385; Bacon v. SaskatchewanCrop Insurance Corp., , [1999] 11 W.W.R. 51 (Sask. C.A.), leave to appeal to S.C.C. denied, [2000] 1 S.C.R. vi;Zeng v. Canada (Attorney General), 2013 FC 104, 50 Admin. L.R. (5th) 210; Kinsel v. Canada (Citizenship and Immigration), 2012 FC1515, [2014] 2 F.C.R. 421; Toronto Coalition to Stop the War v.

Canada (Public Safety and Emergency Preparedness), 2010 FC 957,[2012] 1 F.C.R. 413; Canadian Council of Churches v. Canada, (FCA), [1990] 2 F.C. 534, (1990), 68 D.L.R. (4th)197 (C.A.) affd sub nom. Canadian Council of Churches v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193; Ruparel v. Canada (Minister of Employment and Immigration), (FC), [1990] 3 F.C. 615, (1990), 36 F.T.R. 140 (T.D.); Lee v. Canada (Minister of Citizenship and Immigration), , 126 F.T.R. 229 (F.C.T.D.); Deol v.

Canada (Minister of Citizenship and Immigration), 2001 FCT 694, 211 F.T.R. 12, affd 2002FCA 271, [2003] 1 F.C. 301; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120. authors cited Citizenship and Immigration Canada. Operational Bulletin 400, “Cessation of Processing for Certain Federal Skilled Worker BacklogApplications: Budget 2012”, April 4, 2002, online: <http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob400.asp>. Citizenship and Immigration Canada.

Operational Bulletin 413, “Processing for Certain Federal Skilled Worker Backlog Applications:Budget 2012 – amended version”, April 27, 2012, online: <http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob413.asp>. Citizenship and Immigration Canada. Operational Bulletin 442, “Cessation of processing and Return of Fees for Certain Federal SkilledWorker Applications”, June 29, 2012, online: <http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob442.asp>. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Newman, Warren. “The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation” (2005),16 N.J.C.L. 175. APPLICATIONS seeking an order of mandamus directing the respondent to process the applicants’ applications for permanent residenceas members of the federal skilled worker class. Applications dismissed. APPEARANCES Mario Bellissimo and Erin Roth for applicant Mae Joy Tabingo. Robert Blanshay for applicant Habibollah Abedi in file IMM-8669-12.

Cecil Rotenburg, Q.C. for applicant Maria Sari Teresa Borja Austria in file IMM-10307-12. Matthew Jeffery for applicant Ali Raza Jafri in file IMM-4866-12. Mary L. F. Lam for applicant Zafar Mahmood et al. in file IMM-8302-12. Rocco Galati and Lawrence S. Wong for applicants Sumera Shahid in file IMM-3725-12 and Fang Wei in file IMM-6165-12. Lorne Waldman and Jacqueline Swaisland for applicant Yanjun Yin in file IMM-8748-12. Keith Reimer , Martin Anderson , Jocelyn Espejo-Clarke and C. Julian Jubenville for respondent. SOLICITORS OF RECORD Bellissimo Law Group , Toronto, for applicant Mae Joy Tabingo.

Blanshay & Lewis , Toronto, for applicant Habibollah Abedi in file IMM-8669-12. Cecil Rotenberg, Q.C. , for applicant Maria Sari Teresa Borja Austria in file IMM-10307-12. Matthew Jeffery , Toronto, for applicant Ali Raza Jafri in file IMM-4866-12. Mary L. F. Lam , Toronto, for applicant Zafar Mahmood et al. in file IMM-8302-12. Lorne Waldman & Associates , Toronto, for applicant Yanjun Yin in file IMM-8748-12. Deputy Attorney General of Canada for respondent. Table of Contents Paragraph Overview 1 Legislative Background 5 The Applicants 15 Discussion 17 Statutory

interpretation 17 Bill of Rights 38 Rule of law / Unwritten principles of the Constitution 45 Judicial independence 54 Applicability of the Charter 61 Life, liberty and security of the person 80 Equality 103 Evidence of discrimination 119 Perpetuation of stereotype 135 Justification for infringement 138 Mandamus 139 Humanitarian and compassionate relief 141 The appliation fees 145 Conclusion 147 Judgment Annex A: Immigration and Refugee Protection Act , S.C. 2001, c. 27 Annex B: Canadian Bill of Rights , S.C. 1960, c. 44 Annex C: Canada Permanent Residents by Source Country Annex D: List of Applications Determined by this Decision The following are the reasons for judgment and judgment rendered by Rennie J.: Overview [ 1 ] These applications concern

section 87.4 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), a recent amendment introduced by Bill C-38, known as the Jobs, Growth and Long-term Prosperity Act [S.C. 2012, c. 19]. 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 , being

Part I of the Constitution Act , 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. [ 3 ] Eight applicants were identified to represent approximately 1 400 other individuals, all of whom had commenced applications under

section 18.1 of the Federal Courts Act , R.S.C., 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 percent.

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 [Cessation of Processing for Certain Federal Skilled Worker Backlog Applications: Budget 2012], 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 [Processing for Certain Federal Skilled Worker Backlog Applications: Budget 2012 –

amended version], 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 [Cessation of Processing and Return ofFees for Certain Federal Skilled Worker Applications] to provide guidance on its implementation.

Bulletin 442 provided that applicationswere 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 aselection decision on or after March 29, 2012 and the application had not been finalized as of Royal Assent. This is, in fact, a subset ofthe first situation. The Applicants [15] The applicants share the common characteristic of having their FSW applications terminated. The eight applicants are citizens ofdiverse nationalities and applied at different Canadian visa posts, including Islamabad, Beijing, Manila and Damascus.

As noted, theeight applicants represent, in turn, several thousand FSW applicants who have had their applications terminated and who havecommenced 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 paragraphs 1(

a) and 2(

e) of the Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C., 1985, Appendix III (Bill of Rights)] applyto 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, R.S.C., 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 (AnnexA), properly construed, does not apply retrospectively to interfere with vested rights. Further, they submit that it does not operate toterminate the applications as a matter of law, but rather that individualized adjudication must follow to determine what applications theprovision in fact captures; put otherwise, the applications remain extant until a subsequent administrative action or adjudicative decisionis made. [18] As I will explain, these arguments cannot be sustained. It is evident, on a principled reading of the provision, that

section 87.4was intended to terminate the applications upon its coming into force. This requires that it apply retrospectively, cancelling anyentitlement 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), at page87: “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the schemeof 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 andunequivocal, the ordinary meaning of the words plays a dominant role in the interpretive process: Celgene Corp. v. Canada (AttorneyGeneral), 2011 SCC 1, [2011] 1 S.C.R. 3, at paragraph 21. [20]

Section 12 of the

Interpretation Act, R.S.C., 1985, c. I-21 also instructs that: Enactments deemedremedial 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction andinterpretation as best ensures the attainment of its objects. [21] When determining what Parliament or the legislature intended, a court may reference the various ancillary principles of statutoryinterpretation.

The applicants urge this Court to apply the presumption against interference with vested rights, the presumption againstretrospectivity and the presumption that the legislature does not intend absurd or inequitable results. For the purpose of the statutoryinterpretation 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 sois clear.

However, when a statute is unambiguous, there is no role for presumptions or interpretive aids, and the courts may not applyany of the interpretive presumptions noted earlier: Professional Institute of the Public Service of Canada v. Canada (AttorneyGeneral), 2012 SCC 71, [2012] 3 S.C.R. 660, at paragraphs 95, 159–160; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC49, [2005] 2 S.C.R. 473, at paragraph 71; Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977]1 S.C.R. 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 the 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 performs 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 resident 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 paragraph 1(

a) of the Bill of Rights, which protects the right not to be deprived of property except by due process of law and paragraph 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 S.C.R. 40, at paragraphs 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 paragraph 1(

a) was triggered by the deprivation of property and the bar of judicial recourse. Major J, speaking for the Court, wrote [at paragraphs 42 and 44]: 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 [at paragraph 45]: 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 paragraph 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 speaks 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 , at paragraphs 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 S.C.R.

Section 39 of the Canada Evidence Act , R.S.C., 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 , at paragraph 57 .

[49] The Supreme Court of Canada returned to the question three years later in Imperial Tobacco (at paragraphs 61–64) concludingthat 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 theextent 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), (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 viewof 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 tosupport 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. Andthey 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 inCanada. [Emphasis in original.] [50] With the exception of criminal offences and sanctions there is no requirement that legislation be prospective, even thoughretrospective and retroactive legislation can overturn settled expectations and be perceived as unjust: Imperial Tobacco, at paragraphs69–72.

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 hasexpressed a clear intention that

section 87.4 apply retrospectively. Though this may be perceived as unjust, it does not violate the rule oflaw. [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 plainand obvious reading. Second, vagueness has only been used to invalidate legislation in exceedingly rare circumstances and then only in acriminal law context: R v. Spindloe, 2001 SKCA 58 , at paragraph 78. [52] As was the case in Imperial Tobacco, the applicants have argued for an understanding of unwritten constitutional principles thatwould expand on the rights specifically provided for in the written Constitution. In particular, the applicants have argued that, embeddedin the rule of law, there is a broader equality right than that provided for in

section 15 of the Charter. Acceptance of this argument wouldrender the written constitutional rights redundant. The recognition of unwritten constitutional principles is not an invitation to dispensewith the written text of the Constitution: Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paragraph53, and, while the parameters of the unwritten principles of the Constitution remain undefined, they must be balanced against the conceptof Parliamentary sovereignty which is also a component of the rule of law: Warren J.

Newman, “The Principles of the Rule of Law andParliamentary Sovereignty in Constitutional Theory and Litigation” (2005), 16 N.J.C.L. 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 thejudiciary’s freedom to render decisions based solely on the requirements of the law, without interference from the executive branches ofgovernment.

There are three essential conditions of judicial independence: security of tenure, financial security and administrativeindependence. The applicants have not identified a basis on which

section 87.4 interferes with any of the essential conditions of judicialindependence. [55] In Imperial Tobacco [at paragraph 53], the Supreme Court of Canada emphasized that judicial independence does not include thefreedom 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 itexists from time to time.

Subject always to the Constitution, both written and unwritten, Parliament may change the law and this includesbarring certain claims through limitation and Crown immunity statutes: Bacon v. Saskatchewan Crop Insurance Corp., , [1999] 11 W.W.R. 51 (Sask. C.A.), leave denied [2000] 1 S.C.R. vi. [57] The applicants argue that

section 87.4 unduly interferes with the courts by prescribing certain outcomes. They draw support forthis from subsection 87.4(3) which they argue excludes any form of judicial supervision, and subsection 87.4(5) which bars any right ofrecourse against the Crown for damages. [58] This argument misunderstands the origins and purpose of judicial independence. Parliament is free to craft legislation and thecourts must, assuming it is constitutional, interpret and apply that legislation as written.

It is not interference with judicial independencefor Parliament to write legislation which leads to a certain outcome when properly applied. This is the proper function of lawmaking, ofwhich there are many examples. Authorson; Imperial Tobacco; and Babcock involved legislative change or adaptation to what wouldotherwise be decided through judicial process.

In Authorson, causes of action to recover interest were barred; in Imperial Tobacco, a dutyof care and causation were decreed by legislation; and in Babcock, relevant evidence could be rendered inadmissible by a certificate ofthe Clerk of the Privy Council. [59] As I have previously explained, if any applicants believe their applications were improperly identified as terminated and canpoint to a positive selection decision before March 29, 2012, they may apply to the Court for an order of mandamus. The rule of lawmandates that all administrative action must have its source in law.

If CIC improperly identifies an application as terminated and refusesto process it, that action would be without a source in law and therefore amenable to the Court’s jurisdiction. Additionally, this Court isnot 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 isultra vires on division of powers grounds: Alberta v. Kingsway General Insurance Company, 2005 ABQB 662, 258 D.L.R. (4th) 507, atparagraph 67. In Kingsway General Insurance Company, the legislature of Alberta passed legislation to immunize the government fromliability resulting from insurance reforms, targeting a specific action which was pending before the Court of Queen’s Bench.

The Courtdetermined that the legislation was within the competence of the legislature and did not violate the rule of law even though it barred aspecific, 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, theapplicants abandoned their reliance on paragraph 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 theprotection of the Charter. This question is one of application of the Charter, and not to be confused or conflated in its analysis with that ofstanding. The applicants are “directly affected” by the passage of Bill C-38, as to have sufficient legal interest to commence theapplications. 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 undersection 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].Similarly, Charter compliant legislation must be administrated in a manner consistent with the Charter. If not, a remedy is availableunder

section 24 of the Charter. In all cases, the central and controlling frame of analysis is that constitutionality is governed by effectand consequence, not legislative intent. In this case, the repercussions and effects of

section 87.4 are outside of Canada, and fall uponnationals 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 thatsection must fail. However,

section 7 and

section 15 do not contain that explicit limitation, applying to “everyone” and “everyindividual” respectively. [65] There has been clear guidance from the Supreme Court of Canada and the Federal Court of Appeal as to when the Charter appliesto the actions of Canadian officials outside of Canada. The present case has a significant distinction from these authorities. The issue hereis not whether the Charter applies to officers and agents of the Government of Canada when abroad, but whether it affords rights toforeign nationals outside of Canada who are affected only by legislative change of Parliament.

The weight of the case law indicates thatnon-citizens outside of Canada may not claim the protection of the Charter, absent exceptional circumstances involving the actions ofCanadian officials or agents abroad. [66] Justice Edmond Blanchard considered this issue in Slahi v. Canada (Justice), 2009 FC 160, 186 C.R.R. (2d) 160 (affd 2009 FCA259, 394 N.R. 352), in the context of a

section 7 Charter claim brought by foreign nationals who had been detained at Guantánamo Bayand questioned there by Canadian officials. Justice Blanchard conducted a detailed review of the law on extraterritorial application of theCharter, starting with Singh et al. v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177. In Singh, itwill be recalled, Justice Wilson accepted that the term “everyone” in

section 7 of the Charter “includes every human being who isphysically present in Canada and by virtue of such presence amenable to Canadian law” [at page 202]. [67] Justice Blanchard also noted Justice L’Heureux-Dubé’s dissenting reasons in R. v. Cook, (SCC), [1998] 2S.C.R. 597 wherein she noted [at paragraph 86]: I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they maybe, even if certain rights contain the word “everyone”.

Rather, I think that it is arguable that “everyone” was used to distinguish the rightsgranted to everyone on the territory of Canada from those granted only to citizens of Canada and those granted to persons charged withan offence. [68] The majority in Cook had determined that the Charter did apply in the context of an American citizen who had been questionedby Canadian authorities in the United States and then faced trial for murder in Canada, without explicitly addressing Justice L’Heureux-Dubé’s concern. [69] More recently, in R. v.

Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 the Supreme Court of Canada effectively overruled the majorityin Cook and determined that the Charter did not apply to Canadian police officers while conducting an extraterritorial search and seizureunder the authority of local officials. Writing for the majority, Justice LeBel emphasized that Canada cannot act to enforce or give effectto its laws, including the Charter, within the territory of another state absent that state’s consent or some other exceptional basis ininternational law.

Justice LeBel also acknowledged, but did not explicitly endorse, Justice L’Heureux-Dubé’s dissent in Cook. I note,parenthetically, that the circumstances of this case do not involve the application of Canadian law within the territory of another state. [70] Having reviewed these authorities, Justice Blanchard concluded, at paragraphs 47 and 48 that: In

summary, the jurisprudence of the Supreme Court teaches that

section 7 Charter protections may be available to non-Canadians whenthey are physically present in Canada or subject to a criminal trial in Canada, and that Canadian citizens, in certain circumstances, mayassert their

section 7 Charter rights when they are outside Canada.… The Applicants are not Canadian citizens. They have failed to establish the required connection to Canada. Consequently, theircircumstances cannot engage a

section 7 Charter right. [71] This decision was upheld by the Federal Court of Appeal in Slahi v. Canada (Justice), 2009 FCA 259 [above]. The Court [at

paragraph 4] agreed with Justice Blanchard’s determination “that

section 7 was inapplicable to the applicants while detained by U.S.authorities at Guant[á]namo Bay because they are not Canadian citizens.” [72] In Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, the Supreme Court of Canada found that the Charter applied toCanadian agents who questioned Omar Khadr, a Canadian citizen, while he was detained in Guantánamo Bay. Two factors distinguishKhadr from the present case. First, Mr. Khadr was a Canadian citizen. Second, it was accepted that Canada had participated in a processthat violated Mr.

Khadr’s fundamental human rights under both Canadian law and international law. This finding was at the core of thedecision in Khadr. [73] Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FC 336, [2008] 4 F.C.R. 546 (affd 2008 FCA 401,[2009] 4 F.C.R. 149), involved detainees held by the Canadian Forces in Afghanistan in the context of an ongoing armed conflict.

TheFederal Court of Appeal upheld Justice Anne Mactavish’s conclusion that while the detainees were protected by internationalhumanitarian law, they did not have Charter rights as “there has been no consent by the Government of Afghanistan to having CanadianCharter rights conferred on its citizens, within its territory”: Amnesty International, at paragraph 172. [74] It is significant that the jurisprudence interpreting

section 15 has developed in reference to Canadian society and Canadian normsand values. In Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, JusticeIacobucci explained that discrimination promotes the view that an individual has less value “as a human being or as a member ofCanadian society.” In determining whether a claim for discrimination has been made out, a court is to consider whether the claimant hasa “disadvantaged position within Canadian society.” The Supreme Court of Canada recently endorsed this language in Quebec (AttorneyGeneral) v.

A, 2013 SCC 5, [2013] 1 S.C.R. 61, at paragraph 151. [75] Other recent decisions of this Court have found that non-citizens outside of Canada generally do not hold Charter rights: Zeng v.Canada (Attorney General), 2013 FC 104, 50 Admin. L.R. (5th) 210, at paragraphs 70–72; Kinsel v. Canada (Citizenship andImmigration), 2012 FC 1515, [2014] 2 F.C.R. 421, at paragraphs 45–47; Toronto Coalition to Stop the War v. Canada (Public Safety andEmergency Preparedness), 2010 FC 957, [2012] 1 F.C.R. 413, at paragraphs 81–82.

These three decisions followed Justice Blanchard’sdetermination that a Charter claim may only be advanced by an individual who is present in Canada, subject to criminal proceedings inCanada, or possessing Canadian citizenship. [76] This limitation on the application of the Charter is not a recent development. Even prior to Slahi, the Federal Court and theFederal Court of Appeal had interpreted Singh as barring Charter claims from non-citizens outside Canada: Canadian Council ofChurches v. Canada, (FCA), [1990] 2 F.C. 534 (C.A.) (affd on other grounds (SCC), [1992] 1S.C.R. 236); Ruparel v.

Canada (Minister of Employment and Immigration), (FC), [1990] 3 F.C. 615 (T.D.); Lee v.Canada (Minister of Citizenship and Immigration), , 126 F.T.R. 229 (F.C.T.D.); Deol v. Canada (Minister ofCitizenship and Immigration), 2001 FCT 694, 211 F.T.R. 12 (affd on other grounds 2002 FCA 271, [2003] 1 F.C. 301). [77] The only exception counsel identified involved an applicant claiming the right to citizenship, rather than the privilege ofimmigration: Crease v. Canada, (FC), [1994] 3 F.C. 480 (T.D.).

In that case the applicant had applied for citizenshipfrom within Canada and had a Canadian mother. [78] The respondent does not dispute either the applicants’ standing or the application of the Charter. The parties appear to coalescearound the proposition that the FSW applications establish a sufficient nexus with Canada to extend the reach of sections 7 and 15. Thejurisprudence does not support this concession. What is in issue involves the repercussions abroad of domestic legislation.

In this case,there is no question of the extra-territorial application of the Charter as an adjunct of the actions of Canadian officials abroad, nor isthere, as I conclude on the evidence, non-compliant administration of the legislation. The issue framed by this case is whether theprotections provided by sections 7 and 15 reach foreign nationals, when residing outside of or beyond Canadian territory. [79] Despite my reservations as to the correctness of the concession, given that there is no lis between the parties on the issue, I willnot determine the point.

Charter jurisprudence should develop incrementally through the interface of opposing positions and interests. Inany event, it is unnecessary to determine the point, as I find that the claims of infringement fail on their merits. Life, Liberty and Security of the Person [80]

Section 7 of the Charter provides that: Life, liberty andsecurity of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof exceptin accordance with the principles of fundamental justice. [81] A prerequisite to a discussion of the principles of fundamental justice is that the applicants’ life, liberty or security interests bedemonstrated to have been engaged: Blencoe v. British Columbia, 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph 47. I have concludedthat the applicants’ argument under

section 7 fails at that threshold question. [82] In Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, the SupremeCourt of Canada concluded that deportation of a non-citizen for committing serious crimes did not violate

section 7. While therespondent urges Chiarelli as a conclusive answer to the

section 7 challenge, the applicants say that this is too broad a reading, notingthat the Court in Chiarelli did not determine whether deportation could be conceptualized as a deprivation of the right to liberty, only thatit did not violate the principles of fundamental justice. [83] In a subsequent decision the Supreme Court of Canada relied on Chiarelli in support of its conclusion that “the deportation of anon-citizen in itself cannot implicate the liberty and security interests protected by s. 7”: Medovarski v Canada (Minister of Citizenshipand Immigration); Esteban v.

Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paragraph 46. Inboth decisions, the Supreme Court of Canada emphasized that, “[t]he most fundamental principle of immigration law is that non-citizensdo not have an unqualified right to enter or remain in Canada”.

[84] These decisions are dispositive of the applicants’

section 7 arguments. While the focus was on the right to remain in Canadaconsequent to criminal conduct, the Supreme Court of Canada spoke at a higher level of principle when it concluded that there is nounqualified right to enter into Canada. [85] The applicants seek to confine the scope of Chiarelli and Medovarski. They contend that their liberty and security of the personinterests are engaged because immigration is a decision of fundamental personal importance and because of the psychological stress theyhave experienced. The applicants were assured that their applications would be processed.

They incurred substantial costs and madepersonal sacrifices in hopes of immigrating. They waited patiently in the queue, for many years. They are now dismayed to learn that itwas all for nothing. [86] Mae Joy Tabingo, a qualified nurse, waited seven years, only to find that it was for naught. As the door she was seeking to enterclosed, another door opened to other nurses who had not stood in the same line.

I accept her evidence that she perceives this to be unfair. [87] Fang Wei applied to immigrate to Canada in order to join her husband who landed as a permanent resident on June 14, 2006.Because her husband did not disclose their marriage on landing, she cannot be sponsored by him as a spouse. Ms. Wei and her husbandhave delayed having children as a result of their separation and her life has been “on hold”.

CIC repeatedly reassured her that “all of theapplications in our inventory will be processed” and she was not advised that she could reapply under that the new ministerial instructionscheme. [88] Sumera Shahid made her application in September of 2007. CIC mistakenly returned her file on the erroneous basis that she hadfailed to include the appropriate fee. CIC confirmed acceptance of her application in November of 2007 and advised that processingwould take three to three and a half years. Ms.

Shahid repeatedly inquired as to the status of her application and was reassured that adecision would be forthcoming. [89] Ali Raza Jafri also applied in 2007 at the Islamabad visa office, based on his experience as a marketing manager. His wife andchildren were listed as his dependants. In 2009 he requested that his application be transferred to another visa office but this was denied.He now feels “completely betrayed” by the termination of his application.

He gave up job opportunities and delayed buying a home inanticipation of immigrating. [90] Habibollah Abedi is a citizen of Iran where he has worked as an aircraft maintenance engineer. He applied at the Damascus visaoffice in 2006, listing his wife and children as dependants. In 2010, his file was transferred to Warsaw and in 2012 the Warsaw officeadvised that it was trying to “manage arrivals” and needed to “stagger” the issuance of visas. [91] Maria Sari Teresa Borja Austria applied at the visa office in Manila in 2005, listing her son as a dependant. She hoped to bereunited with her sister in Canada.

When she applied, Ms. Austria was 49 years old and would have received 10 out of 10 points for herage. Now, she is outside of the prescribed age range and would not be entitled to any points for her age. For Ms. Austria, the possibilityof submitting a new application is no solution to having her pending application terminated. [92] Zafar Mahmood applied in 2006 at the Islamabad visa office, with his wife and three children as dependants. CIC informed himthat the anticipated processing time was 36–42 months, and so he expected a decision by May of 2010.

His application was transferred toLondon in 2010 and by then the anticipated processing time had increased to 88 months. [93] Yanjun Yin applied in 2007, listing his wife as his dependant. In March of 2010, he provided updated documentation to theBeijing visa office, as requested by that office, and anticipated that a decision would be forthcoming. Mr. Yin has been diligent incorresponding with CIC and the Minister regarding his pending application. He and his wife pursued English language and professionaleducation in anticipation of immigrating. [94] These circumstances are said to engage the applicants’

section 7 interests. [95]

Section 7 is primarily, but not exclusively, concerned with the rights of individuals in the criminal justice context, includingrights on search, seizure, detention, arrest, trial and imprisonment. However, the liberty interest protected by

section 7 encompasses morethan freedom from physical restraint and includes the freedom to make fundamental personal choices: Blencoe, at paragraphs 49 and 54.Additionally, security of the person can protect both physical and psychological integrity: New Brunswick (Minister of Health andCommunity Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46. [96] The applicants contend that their pending FSW applications engage these fundamental interests. The FSW process provides thesole path by which they can attain additional rights and a standard of living essential to their physical and psychological integrity.

Theyalso say that completing their applications and emotionally investing in the decision to leave their country of origin constitutes afundamental personal choice. However, giving

section 7 its widest scope, I find that there are no

section 7 interests engaged by section87.4. [97] In R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, Justice Wilson, speaking for herself, determined that awoman’s liberty interest was engaged by restricting access to abortion. She explained at page 166, that the right to liberty “grants theindividual a degree of autonomy in making decisions of fundamental personal importance.” Justice La Forest endorsed this passage inB. (R.) v.

Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315, at paragraph 80, in deciding thatsection 7 protected the rights of parents to care for their children. [98] In Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, Justice Sopinka wrote thatpersonal autonomy and basic human dignity are encompassed within security of the person. This includes the right to make choicesconcerning one’s own body and control over one’s physical and psychological integrity.

In Blencoe, the Court cautioned that onlyserious, state-imposed impacts on a person’s psychological integrity may engage

section 7: Blencoe, at paragraphs 56–57. [99] I accept that the applicants have experienced stress and hardship; I also accept that the circumstances of some of the applicantsare compelling. However, immigration is not of such an intimate, profound and fundamental nature as to be comparable with a woman’s

right of reproductive choice, or the freedom of parents to care for their children. The ability to immigrate, particularly as a member of aneconomic class, is not among the fundamental choices relating to personal autonomy which would engage

section 7. While it may havelife-altering consequences, the possibility of immigrating to Canada as a successful FSW applicant does not engage life or libertyinterests. [100] The voluntary character of the applicants’ decision to apply for a FSW visa, and to voluntarily put major life decisions inabeyance pending the outcome, is determinative of the question as to whether security of the person is engaged. Voluntarinessdistinguishes the applicants’ situation from that in Rodriguez. Sue Rodriguez suffered from amyotrophic lateral sclerosis, a terminalillness.

She challenged the law against assisted suicide so that she could die at the time and in the manner of her choosing. The SupremeCourt of Canada accepted that she would slowly deteriorate, become dependent and lose her dignity. The hardship she experienced isincomparable in extent and dimension to that experienced by the applicants, and more importantly, she had no choice. [101] The applicants’ situation is also unlike that in New Brunswick (Minister of Health and Community Services) v.

G. (J.) wherein theSupreme Court of Canada found that an application by the state to remove children from a parent affected the parents’ security of theperson. Child apprehension is a profound intrusion into private life and stigmatizes the parent who is judged as “unfit”.

In reaching thisconclusion, Chief Justice Lamer [at paragraph 59] emphasized that, “the right to security of the person does not protect the individualfrom the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.” [102] The loss of the expectation or hope is understandably distressing. I also accept that, given the passage of time, the effect on thepoints awarded on the basis of age and the shift in occupational priorities reflected in successive ministerial instructions, the opportunityof reapplying has evaporated.

Nevertheless, I find that the interests protected by

section 7 are not engaged in these circumstances. In myview, the applicants have experienced the ordinary stresses and anxieties that accompany an application to immigrate. All

section 87.4did was terminate the opportunity. Therefore, the

section 7 argument fails at the threshold question. Equality [103] Subsection 15(1) of the Charter provides that: Equality before and underlaw and equal protectionand benefit of law 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equalbenefit of the law without discrimination and, in particular, without discrimination based on race, national orethnic origin, colour, religion, sex, age or mental or physical disability. [104] The applicants argue that

section 87.4 codifies and legitimizes past discrimination on the basis of national origin and country ofresidence. As such, the application and implementation of the law is discriminatory. [105] It is also axiomatic to Charter analysis that, regardless of Parliament’s intention or purpose, the legislation is assessed by itseffects on individuals and groups. It is not enough for legislation itself to be constitutional; legislation must also be administered in aCharter compliant manner: Little Sisters Book and Art Emporium v.

Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120. [106] The applicants’ evidence is that approximately 92 percent of the terminated applications originated in Africa, the Middle East,Asia and the Pacific, while 8 percent of the terminated applications originated in Europe and the Americas.

They argue that the soleconclusion that can be drawn from these differential rates in the clearance of FSW backlogs is that CIC’s manner of implementing theIRPA, namely the allocation of resources and other operational decisions, has resulted in differential treatment on the basis of nationalorigin or residence. [107] From this global analysis of the evidence the applicants point to specific visa posts for further support. The rate of reductionvaried dramatically depending on the visa office in question. For example, Mae Joy Tabingo is a citizen of the Philippines and applied atthe Manila visa office.

Manila had a backlog of 21 581 files as of February 27, 2008. On June 29, 2012, there were 13 733 filesremaining. In contrast, the Buffalo office in the United States had 17 225 applications in its backlog as of February 27, 2008. On June 29,2012, there were only 9 remaining files to be terminated. [108] This is significant because subsection 11(1) of the Regulations requires persons applying for a permanent resident visa to apply atthe visa office serving their country of citizenship or residence.

The objective of this regulation is to ensure that applications are assessedby the visa posts best situated to verify and assess the application materials. This does not mean, however, that applications, oncereceived, are necessarily processed in that country’s visa post. [109] As a matter of first impression, the visa office processing rates support the inference that nationals of the Americas and Europehave been prioritized over those from Asia, the Pacific, the Middle East and Africa, and support the claim of differential treatment basedon national origin.

Closer examination reveals a different picture. [110] As a preliminary issue, I note that national origin is an enumerated ground of discrimination and that citizenship has beenrecognized as an analogous ground. The applicants primarily rely on national origin for their

section 15 argument. They have placed lessemphasis on country of residence, which they argue is a ground of discrimination analogous to those set out in

section 15. [111] There is no case law which suggests that country of residence is an analogous ground. [112] Analogous grounds arise or are established on the basis of personal characteristics that are immutable, or changeable only atunacceptable cost to personal identity. When determining whether grounds of discrimination are analogous to those listed in

section 15,courts should consider whether the characteristics at issue have historically served as “illegitimate and demeaning proxies for merit-based decision making” and whether the distinction being drawn affects a “discrete and insular minority or a group that has beenhistorically discriminated against”: Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2S.C.R. 203, at paragraph 13. [113] The applicants point to R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296 wherein the Supreme Court of Canada left it

open that a person’s province of residence might, in appropriate circumstances, ground a claim of discrimination. Further, in Corbiere,the Court found that the residence of Aboriginal Canadians, specifically the question of whether an Aboriginal band member lives on oroff a reserve, is an analogous ground of discrimination. However, the Court made it clear that residence decisions faced by non-Aboriginal Canadians should not be confused with the profound decisions Aboriginal band members make to live on or off theirreserves, assuming choice is possible.

Aboriginal identity, including identification with an ancestral land, is unique. The situation inCorbiere is not comparable to that of the applicants. [114] It is doubtful that country of residence could be an analogous ground. Country of residence is not an immutable characteristic, noris it vital to identity, given th

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