Judgments

[1995] 1 F.C. 284

IMM-1531-93

Hooshang Attar Jafari (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Jafari v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Nadon J.—Toronto, March 28; Québec, August 18; Ottawa, August 22, 1994.

Citizenship and immigration — Status in Canada — Convention refugees — Refugee Claimants Designated Class Regulations exempting backlog claimants from full refugee status determination hearing provided determined to have credible basis for claim, exclusionary criteria not met — S. 3(2)(f) excluding those leaving Canada after coming into force of Regulations, and remaining outside Canada for more than seven days — S. 3(2)(f) ultra vires as based predominantly on irrelevant factors — Governor in Council’s regulation-making power subject to Immigration Act, s. 6(2): composition of such classes must be in accordance with Canada’s humanitarian tradition toward displaced, persecuted — Exclusion from backlog merely for leaving Canada for more than seven days inconsistent with purpose of legislation.

Constitutional law — Charter of Rights — Life, liberty and security — Refugee Claimants Designated Class Regulations exempting backlog claimants from full refugee status determination hearing provided determined to have credible basis for claim, exclusionary criteria not met — S. 3(2)(f) excluding those leaving Canada after coming into force of Regulations, and remaining outside Canada for more than seven days — S. 3(2)(f) not violating Charter, s. 7 — Subjecting claimant to regular refugee determination process, in accordance with fundamental justice, not infringing security of person.

Constitutional law — Charter of Rights — Equality rights — Refugee Claimants Designated Class Regulations exempting backlog claimants from full refugee status determination hearing provided determined to have credible basis for claim, exclusionary criteria not met — S. 3(2)(f) excluding those leaving Canada after coming into force of Regulations, and remaining outside Canada for more than seven days — Applicant alleging discrimination against persons without citizenship — Neither “personal characteristic” nor “immutable personal characteristic” — Consequences of s. 3(2)(f) resulting from choice of backlog claimants to leave Canada for more than seven days — Whether applicant aware of paragraph 3(2)(f) irrelevant to whether effects of provision discriminatory.

This was an application for a declaration that paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations is ultra vires the Immigration Act or in violation of Charter, sections 7 and 15, and for an order of mandamus ordering the respondent and his officials to process and finalize the applicant’s application for landing under the Regulations.

The applicant is a citizen of Iran who arrived in Canada in 1986 and immediately claimed Convention refugee status. His claim had not yet been processed when the Immigration Act was amended in 1989 and the Refugee Claimants Designated Class Regulations promulgated thereunder. The Regulations exempted backlog claimants from a full refugee status determination hearing as long as they were determined to have a credible basis for their claim and certain exclusionary criteria were met, including paragraph 3(2)(f) (which provided that the Refugee Claimants Designated Class shall not include a person who left Canada after the coming into force of the Regulations and remained outside Canada for more than seven days). The applicant was in the United States for twelve days in July 1990. He was not aware of the seven-day rule for backlog claimants. In October 1991 he was advised that he was not a member of the refugee backlog because he had been out of Canada for more than seven days. In October 1992 the Minister conceded that applicant had a credible basis for his Convention refugee claim and a conditional exclusion order was issued.

Immigration Act, subsection 6(1) provides that any immigrant, including a Convention refugee, a member of the family class and an independent immigrant, may be granted landed immigrant status if he establishes that he meets the selection standards established by the regulations to determine whether an immigrant will be able to become successfully established in Canada. Subsection 6(2) provides that any member of a designated class, the admission of members of which would be in accordance with Canada’s humanitarian tradition, may be granted admission subject to the regulations. The applicant argued that section 6 enunciated two concurrent purposes that the Governor in Council must adhere to in exercising the regulation-making power under paragraph 114(1)(d) and (e): (1) to adhere to Canada’s humanitarian tradition toward the displaced and persecuted, and (2) to define selection criteria for admission which should be based on considerations such as family relationships, education, language, skill for the purpose of determining whether or not an immigrant will be able to become successfully established in Canada. The applicant submitted that exclusion of a claimant from the backlog on the basis of an absence from Canada of eight or more days bore no connection to these purposes.

The applicant also submitted that paragraph 3(2)(f) violates his right to security of the person in a manner which is not in accordance with the principles of fundamental justice by denying him the benefit created by the Backlog Regulations for pre-January 1, 1989 refugee claimants of being able to seek landing, as opposed to being required to undergo a full Refugee Division hearing after having been found to have a credible basis. To deny this benefit merely because a claimant has left Canada for more than seven days, without examining the reasons for the absence, violates the claimant’s right to security of the person in a manner that is not consistent with the principles of fundamental justice.

Finally, the applicant argued that not allowing members of the backlog group to leave Canada for more than seven days amounts to discrimination, contrary to Charter, section 15. The applicant submitted that persons without citizenship are a discrete and insular minority for the purposes of section 15, such that different treatment on that ground alone constitutes discrimination.

Held, the application should be granted in part.

Paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations is ultra vires the Immigration Act.

Paragraph 3(2)(f) serves no purpose in accordance with Canada’s humanitarian tradition with respect to the displaced and persecuted. Paragraph 3(2)(f) is ultra vires the Governor in Council as it is “based entirely or predominantly on irrelevant factors”. The Governor in Council enjoys a broad power to create regulations exempting “classes” for the purposes of subsection 6(2), subject to the caveat in subsection 6(2), that the composition of such classes must be in accordance with Canada’s humanitarian tradition toward the displaced and the persecuted. To exclude people from the backlog group merely for leaving Canada for more than seven days, regardless of reason for departure, is not consistent with this stated purpose for which exempted classes are to be created.

Neither Charter, section 7 nor 15 were violated. Merely subjecting the claimant to the regular refugee determination process, which will be in accordance with fundamental justice, does not constitute an infringement of his right to security of the person. All of the bases of discrimination listed in section 15, except for religion, are personal characteristics of individuals that are immutable. The differential treatment alleged by the applicant resulted neither from a “personal characteristic” nor from an “immutable personal characteristic”. The consequences of paragraph 3(2)(f) result from the choice of backlog claimants to leave Canada for a period of more than seven days. Whether the applicant was aware of paragraph 3(2)(f) was irrelevant in determining whether the effects of the provision were discriminatory.

Subsection 6(1) of the Act speaks to granting landing to immigrants and not to admission. It would be wrong to require the content of the backlog regulations which, according to subsection 6(2), govern the mere admission of claimants, to necessarily be consistent with the selection criteria listed under paragraph 114(1)(a).

The following questions were certified, pursuant to Immigration Act, subsection 83(1), as serious questions of general importance: (1) is paragraph 3(2)(f) ultra vires the statutory regulatory powers of the Governor in Council under Immigration Act, section 114? and (2) is paragraph 3(2)(f) contrary to Charter, sections 7 or 15?

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Immigration Act and to amend other Acts in consequence thereof, R.S.C., 1985 (4th Supp.), c. 28.

Canada Agricultural Products Standards Act, R.S.C. 1970, c. A-8, s. 8.

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. 7, 15.

Canadian Citizenship Act, R.S.C. 1970, c. C-19.

Canadian Citizenship Regulations, SOR/68-404, s. 19(1)(b).

Immigration Act, R.S.C., 1985, c. I-2, s. 6 (as am. by S.C. 1992, c. 49, s. 3), 83(1) (as am. idem, s. 73), 114(1) (as am. idem, s. 102).

Immigration Act, 1976, S.C. 1976-77, c. 52, s. 115(b).

Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 8(1).

Immigration Regulations, 1978, SOR/78-172, s. 4(3) (as am. by SOR/84-140, s. 1).

Pacific Pilotage Regulations, SOR/73-82, ss. 9(2)(a), 10(1)(a).

Pilotage Act, S.C. 1970-71-72, c. 52, s. 14.

Produce Licensing Regulations, SOR/67-605.

Refugee Claimants Designated Class Regulations, SOR/90-40, s. 3(2)(f) (as am. by SOR/92-722, s. 1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Roncarelli v. Duplessis, [1959] S.C.R. 121; (1959), 16 D.L.R. (2d) 689; Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247; (1994), 17 Admin. L.R. (2d) 121 (C.A.).

DISTINGUISHED:

Dhami v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 161; 107 N.R. 95 (F.C.A.); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 10 Imm. L.R. (2d) 1; 104 N.R. 50 (C.A.); Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th) 166 (C.A.); Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.).

CONSIDERED:

Ulin v. The Queen, [1973] F.C. 319; (1973), 35 D.L.R. (3d) 738 (T.D.); Re Cardona and Minister of Manpower And Immigration (1978), 89 D.L.R. (3d) 77 (F.C.A.); Steve Dart Co. v. Board of Arbitration (Produce Licensing Regulations), [1974] 2 F.C. 215; (1974), 46 D.L.R. (3d) 745 (T.D.); Pacific Pilotage Authority v. Alaska Trainship Corp., [1980] 2 F.C. 54; (1979), 104 D.L.R. (3d) 364; 28 N.R. 451 (C.A.); Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359; (1985), 22 D.L.R. (4th) 600 (T.D.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.

REFERRED TO:

Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; [1989] 4 W.W.R. 193; 58 Man. R. (2d) 161; 26 C.C.E.L. 1; 10 C.H.R.R. D/6183; 89 CLLC 17,012; 45 C.R.R. 115; 94 N.R. 373.

AUTHORS CITED

Hogg, Peter W. Constitutional Law of Canada, 2nd ed., Toronto: Carswell Co. Ltd., 1985.

APPLICATION for a declaration that Refugee Claimants Designated Class Regulations, paragraph 3(2)(f) is ultra vires the Immigration Act or in violation of Charter, sections 7 and 15, and for mandamus ordering the respondent to process an application for landing under the Regulations. Application allowed in part.

COUNSEL:

Barbara L. Jackman for applicant.

Alice L. Abbott for respondent.

SOLICITORS:

Jackman & Associates, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Nadon J: This is an application for an order declaring paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations, SOR/90-40 [as am. by SOR/92-722, s. 1] (the “Regulations”) to be of no force and effect as being ultra vires the Immigration Act [R.S.C., 1985, c. I-2] or in violation of sections 7 and 15 of 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]] and for an order in the nature of mandamus ordering the respondent and his officials to process and finalize the applicant’s application for landing in Canada under the Regulations.

The applicant is a citizen of Iran who arrived in Canada on November 16, 1986 and immediately made a claim for protection in Canada as a Convention refugee. The applicant never received an answer on his refugee claim prior to the amendment of the Immigration Act in 1989, and, as such, qualified as a backlog claimant under the Regulations, which were promulgated at that time [Dec. 21, 1989]. The Regulations in essence exempted backlog claimants from a full refugee status determination hearing as long as such claimants were determined to have a credible basis for their claim and certain exclusionary criteria were not met. One such criterion, contained under paragraph 3(2)(f) of the Regulations, provides:

3. …

(2) The Refugee Claimants Designated Class shall not include a person who

…

(f) left Canada after the coming into force of these Regulations and remained outside Canada for more than seven days.

The applicant crossed into the United States at least twice—once in July of 1990 and once in August of the same year. According to the applicant, his decision to go to the U.S. was motivated by frustration with the lack of resolution of his case in Canada; he therefore wanted to see two of his uncles who were living in the U.S.

The July crossing, which is the source of controversy in this case, did not start well. Thinking that his Canadian Minister’s permit was insufficient to allow him to visit the United States, the applicant walked across the Canada-U.S. border at an uncontrolled border crossing south of Montréal and was apprehended by the U.S. border patrol shortly thereafter. He was taken to a U.S. immigration office, where authorities made him post bail and surrender his Canadian Minister’s permit. He was allowed to continue his voyage in the U.S, although he was required to report to U.S. authorities upon his return to Canada. It appears from the transcript of the applicant’s examination that a specific appointment, to take place in Buffalo approximately 12 days later, had been set up from the immigration office at the point of entry. According to the applicant, he did not have a choice as to the date of the appointment. The applicant returned to Canada and entered at Niagara Falls approximately 12 days later. Although the applicant was no longer in possession of his Minister’s permit, a computer check confirmed that he did have one and he was allowed to re-enter Canada. He was not apparently aware of the seven-day rule for backlog claimants, although a document entitled The backlog clearance process was publicly available. The first version of this pamphlet was published in January, 1990. Unfortunately, only the October 1990 version of the pamphlet was submitted by the respondent. It is not clear, therefore, whether the pamphlet that would have been available to the applicant specifically referred to the seven-day rule.

The applicant was called to attend a meeting at an office of Canada Immigration on October 4, 1991. He attended the meeting with a student-at-law from his counsel’s office. At that time, the applicant was advised that he was not a member of the refugee backlog because he had been out of Canada for more than seven days and, as such, his file would be transferred to another office to determine whether or not there was a credible basis to his refugee claim. He was also advised that he was no longer eligible to work in Canada, although he kept working thereafter. It was decided not to take issue immediately with this decision, as it was judged preferable to wait to act until a credible basis had been found (i.e. if he had not been found to have a credible basis for his claim, it would not have mattered whether or not he was excluded from the backlog for having been out of Canada for longer than 7 days). Additionally, a letter was sent by the applicant’s counsel on October 7, 1991, requesting that his file be transferred immediately to the immigration office dealing with regular refugee claims, so that it could be dealt with as soon as possible.

It was not until October 13, 1992 that further processing of the applicant’s claim occurred. At that time, the Minister’s representative conceded that the applicant was eligible to make a refugee claim in Canada and that there was a credible basis for his claim to be a Convention refugee. A conditional exclusion order was issued on this date as well.

Although the applicant’s hearing was originally scheduled to be heard before the Refugee Division on December 14, 1992, it was adjourned for no apparent reason. The next scheduled hearing, which was to occur on February 16, 1993, was adjourned, this time, at the request of the applicant. No new hearing date has been scheduled to date.

In the meanwhile, the applicant formally applied for landed status by letter dated November 3, 1993. The respondent alleges that this application was incomplete, as the required $450 fee was made payable by the applicant to the Receiver General for Ontario, instead of the Receiver General for Canada. The applicant has not received a formal answer to this request to date.

ISSUES

The applicant submits that he is entitled to be processed for landing under the Regulations and that the failure by officials of the respondent to process his application was contrary to law. This argument is premised on the illegality of the applicant’s exclusion from the designated class for backlog claimants pursuant to paragraph 3(2)(f) of the Regulations. With regard to this latter matter two arguments are made:

1. Paragraph 3(2)(f) of the Regulations is of no force and effect as being ultra vires the statutory regulatory powers vested in the Governor in Council under the Immigration Act; and

2. Paragraph 3(2)(f) of the Regulations is of no force and effect in that it is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), 1982.

Each of these arguments will be dealt with in turn.

Ultra Vires Argument

The applicant’s submissions with regard to the issue of vires are twofold. In the first place, it is submitted that, at the time the Regulations were implemented, there was no clear statutory authority for the Governor in Council to pass paragraph 3(2)(f). Specifically, the applicant argues that paragraph 3(2)(f) is ultra vires in that it is unrelated to any admission or class identification purpose set out in the Act. The second argument of the applicant is that, paragraph 3(2)(f) being arbitrary and accomplishing no purpose in accordance with the Act, it was beyond the scope of the power of the Governor in Council to create it.

The relevant parts of the Act, as it existed at the time of the applicant’s exclusion from the backlog group, read as follows:

6. (1) Subject to this Act and the regulations, any immigrant including a Convention refugee, a member of the family class and an independent immigrant may be granted landing if the immigrant is able to establish to the satisfaction of an immigration officer that he meets the selection standards established by the regulations for the purpose of determining whether or not an immigrant will be able to become successfully established in Canada.

(2) Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted, may be granted admission subject to such regulations as may be established with respect thereto and notwithstanding any other regulations made under this Act.[1]

…

114. (1) The Governor in Council may make regulations

(a) providing for the establishment and application of selection standards based on such factors as family relationships, education, language, skill, occupational experience and other personal attributes and attainments, together with demographic considerations and labour market conditions in Canada, for the purpose of determining whether or not an immigrant will be able to become successfully established in Canada;

…

(d) designating classes of persons for the purposes of subsection 6(2);

(e) exempting Convention refugees and classes of persons designated pursuant to paragraph (d) from any of the requirements of the regulations and prescribing, in substitution for those regulations, special regulations relating to the admission of Convention refugees and those classes of persons;

As far as the applicant’s first argument with respect to the issue of vires is concerned, it is submitted by the applicant that subsections 6(1) and 6(2) of the Act enunciate two concurrent purposes that must be adhered to by the Governor in Council in exercising the regulation-making power under paragraphs 114(1)(d) and (e) of the Act:

1. To adhere to Canada’s humanitarian tradition toward the displaced and persecuted; and

2. To define selection criteria for admission, which, pursuant to paragraph 114(1)(a) of the Act should be based on social, humanitarian and economic considerations such as family relationships, education, language, skill, etc… “for the purpose of determining whether or not an immigrant will be able to become successfully established in Canada.”

The applicant submits that to exclude a claimant from the backlog group on the basis of an absence of eight or more days from Canada bears no connection to these purposes. It is further submitted by the applicant that, despite the fact that paragraph 114(1)(d) and (e) and subsection 6(2) of the Act envisaged that the Regulations would create a humanitarian exception, which would presumably have less onerous selection standard, paragraph 3(2)(f), which is not applied to regular immigrants of any class, imposes a more onerous arbitrary selection standard, unrelated to admission or humanitarian concerns.

Does the Act indeed limit the scope of Regulations exempting designated classes from the normal Convention refugee determination process to the two purposes stated above? In my opinion, the wording of the Act only supports necessary adherence to the purpose of respecting Canada’s humanitarian tradition toward the displaced and the persecuted in creating exempted classes. Subsection 6(1) of the Act speaks to granting landing to immigrants and not to admission. It would therefore be inaccurate to require the content of the backlog regulations which, according to subsection 6(2) of the Act, govern the mere admission of claimants, to necessarily be consistent with the selection criteria listed under paragraph 114(1)(a) of the Act.

There is no doubt in my mind that paragraph 3(2)(f) serves no purpose in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted; indeed, it is difficult to find any legitimate purpose that the provision serves. None of the alleged purposes of paragraph 3(2)(f), as described in the affidavit of Brian Dougall, a member of the team that developed the Regulations, is particularly convincing. Mr. Dougall states, in the first place, that the seven-day rule was added to compensate for the lack of a provision to allow a refugee claimant to continue with a claim once s/he has left Canada. Viewed this way, paragraph 3(2)(f) was implemented to protect backlog claimants, by preserving their status in the less onerous backlog procedure, while allowing them to leave Canada for family emergencies, etc. The fact is, however, that there is no provision in the Act or the Regulations which signals that refugee claimants who have left Canada for a short period of time should necessarily be excluded from the refugee and backlog processes; the decision as to whether a claim has been abandoned or not, lies with individual adjudicators.

The second factor allegedly underlying the drafting of paragraph 3(2)(f) was a desire to ensure that the processing of backlog claimants remained separate from the processing of non-backlog claimants. According to Mr. Dougall, while the two parallel processes shared the initial step of a credible basis hearing, the administrative structure handling credible basis hearings was separate for each, and in fact proceeded more quickly under the non-backlog process after Bill C-55 [An Act to amend the Immigration Act and to amend other Acts in consequence thereof, R.S.C., 1985 (4th Supp.), c. 28] came into force in January, 1989. The seven-day limit was intended to “minimize the number of individuals who would want to switch from one type of processing to another, or who would want to be in both programs at the same time.”

When cross-examined about the mechanics of the process, Mr. Dougall admitted that there was nothing in law preventing backlog applicants from opting out of the backlog and into the new system. This reality renders the stated purpose of keeping both processes separate illusory.

The final motive allegedly underlying the creation of paragraph 3(2)(f) was to ensure that the backlog clearance program would be time-limited. In the words of Mr. Dougall:

The limit was imposed to avoid situations where individuals would leave Canada for indefinite periods of time and return, seeking landing as a member of the designated class.

Surely, any backlog claimant who leaves Canada for an extended period of time risks being determined to have abandoned his or her claim. Furthermore, reality does not correspond to stated theory. During cross-examination, Mr. Dougall admitted that the Toronto backlog hearing offices only closed in June 1993 and that it is likely that there are still cases in the system that have not been finally disposed of.

The question that must be answered is thus whether this Court has the power to strike paragraph 3(2)(f) of the Regulations because it is arbitrary and accomplishes no purpose in accordance with the Act. In light of the legal authority presented by both parties, I am of the opinion that paragraph 3(2)(f) can and must be struck.

No power, including that vested upon the Governor in Council to create regulations, is absolute. In the words of Mr. Justice Rand in the case of Roncarelli v. Duplessis, [1959] S.C.R. 121, at page 140:

… no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. “Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.

Thus, in cases where regulations have been created that clearly contravene a governing statute, courts have not hesitated to declare such regulations ultra vires. In Ulin v. The Queen, [1973] F.C. 319 (T.D.), for example, Regulation 19(1)(b) of the Canadian Citizenship Regulations [SOR/68-404], which required immigrants wishing to obtain Canadian citizenship certificates, “to make a declaration, in prescribed form, of renunciation of his previous nationality or citizenship”, was declared ultra vires. According to Noël A.C.J., this regulation in effect added a substantive criterion for citizenship, despite the fact that the addition of substantive criteria by the Governor in Council was not contemplated by the Canadian Citizenship Act [R.S.C. 1970, c. C-19]. In fact, according to Mr. Justice Noël, the procedure set down in the Canadian Citizenship Act with respect to taking the oath of allegiance indicated a legislative intent for the oath of allegiance to serve as the only qualification for the issuance of a certificate of citizenship.

In Re Cardona and Minister of Manpower And Immigration (1978), 89 D.L.R. (3d) 77 (F.C.A.), the Immigration Appeal Board made a rule, approved by the Governor in Council, which required parties who wished to have reasons for Board decisions to file a written request for reasons within 30 days of the disposition of the appeal. The rule was purported to have been made pursuant to subsection 8(1) of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, which provided:

8. (1) The Board may, subject to the approval of the Governor in Council, make rules not inconsistent with this Act governing the activities of the Board and the practice and procedure in relation to appeals to the Board under this Act.

Le Dain J. held that the rule was ultra vires despite subsection 8(1), as the rule was inconsistent with subsection 7(3) of the same Immigration Appeal Board Act, which conferred an unqualified right to receive reasons to parties appearing before the Board.

The doctrine of ultra vires may also be used to strike regulations that clearly go beyond the scope of power bestowed upon the delegated legislator in the governing statute. In Steve Dart Co. v. Board of arbitration (Produce Licensing Regulations), [1974] 2 F.C. 215 (T.D.), the sections of the Produce Licensing Regulations, SOR/67-605, which purported to establish an arbitration board, were challenged as being ultra vires. The Board was empowered pursuant to the regulations in question, inter alia, to determine complaints and to make binding decisions against produce license holders who failed to pay accounts on any transactions.

In holding the provisions to be ultra vires, Addy J., of the Trial Division of this Court, noted the general purpose of the empowering statute, the Canada Agricultural Products Standards Act, R.S.C. 1970, c. A-8, to establish standards for agricultural products and to regulate international and interprovincial trade in the products, as well as the fact that there was no source of explicit statutory authority for the creation of the Board. The only statutory provision pursuant to which creation of the Board could have been characterized as ancillary was section 8 of the Canada Agricultural Products Standards Act, which gave the Governor in Council the power to make regulations “for carrying out the purposes and provisions of this Act and for prescribing anything that by this Act is required to be prescribed.” In the opinion of Mr. Justice Addy, however, the power to create what, in effect, was a tribunal or a court, members of which would be delegated significant powers, must be vested explicitly with the Governor in Council and not by means of a vaguely worded provision such as section 8. In the words of Mr. Justice Addy (at page 219):

That section grants the additional right to make regulations to carry out the purposes and provisions of the Act, but such purposes and provisions must be clearly expressed in or contained within or flow by necessary implication from other sections of the Act. It would permit the making of ejusdem generis Regulations as those authorized in other sections of the Act providing for the issuing of Regulations. It would also permit a Regulation required to carry out effectively a clearly expressed provision of the Act not falling within one of the other sections authorizing the making of Regulations; it certainly does not provide the right to make Regulations covering a matter which is not even remotely referred to in the Act. [Emphasis added.]

A case which is closer in substance to the present one is that of Pacific Pilotage Authority v. Alaska Trainship Corp., [1980] 2 F.C. 54 (C.A.). In that case, paragraphs 9(2)(a) and 10(1)(a) of the Pacific Pilotage Regulations [SOR/73-82], which exempted ships registered in Canada from compulsory pilotage requirements, and allowed for waiver from these requirements for ships registered in the United States, respectively, were attacked by the owners and operators of a ship of Liberian registration on the grounds that the regulations were ultra vires. In accepting the argument of the ship’s owners and operators on this point, Mr. Justice Le Dain noted that the stated objective of the governing statute, the Pilotage Act [S.C. 1970-71-72, c. 52], was safety. In light of the fact that country of registration was not relevant to the question of safety, it was held that section 14 of that Act, which gave the authority, with the approval of the Governor in Council, the power to make regulations “necessary for the attainment of its objects”, inter alia:

14. (1) …

(b) prescribing the ships or classes of ships that are subject to compulsory pilotage;

(c) prescribing the circumstances under which compulsory pilotage may be waived. [Emphasis added.]

did not allow regulations unrelated to safety to be made.

The Governor in Council similarly enjoys a broad power, in the present case, to create regulations exempting “classes” for the purposes of subsection 6(2), subject to the caveat in subsection 6(2), that the composition of such classes must be in accordance with Canada’s humanitarian tradition toward the displaced and the persecuted. To exclude people from the backlog group merely for leaving Canada for more than seven days, regardless of reason for departure is not, in my opinion, consistent with this stated purpose for which exempted classes are to be created.

Counsel for the respondent referred me to the case of Dhami v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 161 (F.C.A.), in which Mr. Justice Heald held that the power to designate “classes” is fulfilled properly if the designated group shares at least one differentiating characteristic. In this manner, a regulation differentiating between natural born and adopted sons for the purposes of creating classes of people who may be sponsored was determined to be intra vires, despite the apparent lack of justification for differentiating between natural born and adopted children between the ages of 14 and 18 in Dhami. The important difference between Dhami and the present case is that paragraph 115(1)(b) of the Act [Immigration Act, 1976, S.C. 1976-77, c. 52], which was the statutory provision governing the creation of regulations prescribing classes of persons whose applications for landing may be sponsored by Canadian citizens and by permanent residents in force at the time of Dhami, gave the Governor in Council the unqualified right to prescribe such classes.

Furthermore, although not explicitly discussed by Mr. Justice Heald in Dhami, it is possible to infer at least one legitimate purpose that may have underlaid the regulation differentiating between natural born and adopted children: the need to discourage adoptions arranged exclusively for immigration purposes. Recognition of this need to differentiate between bona fide arrangements and voluntary arrangements entered into exclusively for immigration purposes clearly motivated the Federal Court, Trial Division, not to accept the argument that subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172 (as am. by SOR/84-140, s. 1), was ultra vires in the case of Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359 (T.D.). In the words of Mr. Justice Strayer, at page 368:

I can see no reason why the Governor in Council cannot exclude from a class of persons who may be so sponsored those who have entered into marriage primarily for the purposes of immigration and without the intention of residing permanently with the other spouse.

It is not the role of the courts, using the doctrine of ultra vires, to police the reasonableness of what in effect is a legislative choice of the Governor in Council. In instances where an institution is answerable to Parliament—and Parliament to the people—it is the electorate that should be the judge of the merits of a legislative choice and not the judiciary. The practical impact of this dichotomy on the standard to be applied in assessing the vires of a legislative or policy choice is summarized by the following statement of Mr. Justice Linden in the case of Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.), at page 260:

It is not fatal to a policy decision that some irrelevant factors be taken into account; it is only when such a decision is based entirely or predominantly on irrelevant factors that it is impeachable. It is not up to the Court to pass judgment on whether a decision is “wise or unwise”. (See Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16 (F.C.T.D.), at page 46 per MacKay J.) This Court, because these matters involve “value judgments”, is not to “sit as an appellate body determining whether the initiating department made the correct decision.” (See Strayer J. in Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.) at page 49.)

As this Court stated in National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684, at page 707, “Even if one were to assume that the Governor in Council acted with a dual purpose in mind (one falling within his mandate … and the other falling outside his mandate…) I doubt that this could advance the respondents’ case.” For, as the Supreme Court of Canada has explained, “Governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations”. (See Thorne’s Hardware Ltd., supra, at pages 112 and 113.)

However paragraph 3(2)(f) does fall into the category of a policy decision that is “based entirely or predominantly on irrelevant factors”; as such, I am of the opinion that it is ultra vires the Governor in Council.

Charter Arguments

Section 7

The applicant submits that paragraph 3(2)(f) of the Regulations violates the applicant’s right to security of the person in a manner which is not in accordance with the principles of fundamental justice. In particular, it is the contention of the applicant that the backlog Regulations create a benefit for pre-January 1, 1989 refugee claimants in that they may seek landing, as opposed to being required to undergo a full hearing at the Refugee Division, after they have been found to have a credible basis. To deny a claimant of this benefit merely by reason that such claimant has left Canada for more than 7 days without examining the reasons for the absence from Canada violates the claimant’s right to security of the person in a manner that is not consistent with the principles of fundamental justice.

It is well accepted, in light of the Supreme Court of Canada’s decision in the case of Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that Convention refugee claimants are protected by section 7 of the Charter and that deportation of such claimants infringes their right to security of the person. Where I cannot agree with the applicant is with respect to the premise that merely subjecting him to the regular refugee determination process—which, by all indications, will be in accordance with fundamental justice—constitutes an infringement of his right to security of the person. The applicant’s situation is in stark contrast with that in Re B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486, where imminent incarceration was at stake and the situation of the individuals in Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.); Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (C.A.); Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (C.A.); and Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), where imminent removal of claimants from Canada was at stake.

Section 15

It could be argued, as the applicant does, that not allowing members of the backlog group to leave Canada for more than 7 days amounts to discrimination, in violation of section 15 of the Charter. The applicant cites the case of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 as authority for the proposition that persons without citizenship in Canada are a discrete and insular minority for the purposes of section 15, such that different treatment on that ground alone constitutes discrimination. The applicant then goes on to argue that the fact that the different treatment in the case at bar only affects a subgroup of persons without citizenship does not prevent a section 15 violation from existing, in light of the holding of the Supreme Court of Canada in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.

Inherent in the applicant’s argument is the assumption that the other requirements of section 15 have been met. This is not the case. As Professor Hogg [Constitutional Law of Canada, 2nd ed., 1985] notes, all of the bases of discrimination listed in section 15 of the Charter except for one—religion—are personal characteristics of individuals that are immutable. Even religion, however, which is generally acquired early and deeply embedded in a person’s consciousness, is not subject to easy change.

In Andrews, McIntyre J. characterized non-citizen status as a “personal characteristic” of an individual or group; as such, discrimination based on such status would violate section 15. On the other hand, one may interpret La Forest J. in Andrews to support an approach that requires “analogous grounds” of discrimination to be both personal and immutable for the purposes of section 15. In the words of the learned Judge (at page 195):

The characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable. Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs.

This divergence of approaches need not be resolved in the present case, as the differential treatment alleged by the applicant resulted neither from a “personal characteristic” nor from an “immutable personal characteristic” of his. He chose to enter clandestinely into the United States and the evidence indicates that he made very little, if any, effort to schedule a meeting with U.S. immigration authorities earlier than the scheduled appointment, so that he could return to Canada on time. On the contrary, the consequences of paragraph 3(2)(f) result from the choice of backlog claimants to leave Canada for a period of more than seven days. Furthermore, the issue of whether the applicant knew or not about paragraph 3(2)(f) is irrelevant for the purposes of assessing whether the effects of the provision are discriminatory.

Accordingly, I cannot find a violation of either section 7 or section 15 of the Charter. This application is nevertheless granted in part, on the basis that paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations, SOR/90-40 (the “Regulations”) is ultra vires the Immigration Act. This provision is hereby declared to be of no force and effect. In light of this finding, I also accept the applicant’s request for an order in the nature of mandamus directing the respondent to process and consider the applicant’s application for permanent residence in accordance with law and without reference to paragraph 3(2)(f) of the Regulations.

To conclude, I wish to address the issue of certification. During the hearing, the applicant submitted two questions which he considered sufficiently serious so as to justify certification. The questions are the following:

1. Is paragraph 3(2)(f) of the Regulations ultra vires the statutory regulatory powers of the Governor in Council under section 114 of the Act, as a regulation governing landing in Canada which excludes a class of persons on fixed criteria, unrelated to the need for protection in Canada or the ability of the person to successfully establish in Canada; and

2. Is paragraph 3(2)(f) of the Regulations contrary to the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms, in that it establishes a fixed criterion unrelated to the circumstances of the individual applicant, to the intention of the applicant, to the need for protection in Canada and to the ability of a person to successfully establish in Canada.

I agree that both questions are serious questions of general importance and accordingly, I certify them as such pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act.

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