IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 27 (Cited 27 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 27 (Cited 27 Imm. L.R. (4th))

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CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/contact Tabingo v. Canada (MCI) 175

[Indexed as: Tabingo v. Canada (Minister of Citizenship and Immigration)] Sumera Shahid, Fang Wei, Chuanyue IE, Man Yang, Jing Yang, Siu Lai Woo, Hongbing BI, Xiang Yang Lin, Ying Huang, Xiangning Deng, Shangsi Ling, Chengxiang Liu, Fan Zhang, Yinghong Zhang, Zijun Liu, Baoqing Zhou, Zhendong Wang, Huiqiang Peng, Yang Tian, Changying Chen, Xiaomin Zeng, Fei Zhu, Qiong Zhang, Tingting Zhao, Yan Tu, Jian Hei, Yan Xu, Fuchuan Ni, Xuejun Wang, Yun Zhou, Ning Li, Xin Li, Ping Guo, Haijun Lu, Tong Qi, Shunhua Ye, Hongqi Lin, Kamfai NG, Liang Chen, Bo Liu, Zhenghui Xu, Song Lin, Xuanjin Zhu, Zhiqiang Guo, Peifeng Hao, Ying Bai, Shuxun Chen, Yun Li, Ling Xiao, Li An, Zhu Chai, Ying Zhang, Shaoping Cao, Guimei Jing, Lin Zhang, Wei Chen, Pan Qin, Lingjing Wenren, Yidan Lu, Gui Ma, Xiaoxiao Liu, Yu Shen, Weijuan Wu, Ming Yu Wu, Wenjun Xue, Bing Zhang, Kun Zhu, Chuxiao Li, Xinyan Jia, Juan Luo, Chuan Huo, Mingming Lui, Tian Fu, Huixian Long, Xiaojian Yan, Hong Wei Yang, Yu He, Geqi Weng, Erli Sun, Qizhi Feng, Shaochi Wang, Jianzhong Tan, Chun Chu, Li Liang, Jiancun Huang, Xiaoyu Liu, Dejian Li, Xuelian Bian, Ruochun Li, Rui Hang, Yanling Liu, Aiping Zhang, Fei Wang, Wen Lu, Liping Qiu, Jiang Luo, Yili Wang, Jiong Zhang, Shi Sun, Jiong Wang, Xilei Song, Min Qian, Jiangping Lu, Jiong Gu, Guo Yin Wang, Lijing Xian, Yuan Xu, Yinzi Guan, Jin Liu, Lei Wu, Zhaohui Sun, Xiaodong Huang, Ping Yu, Yangchun Yang, Huiming Hu, Jiemin Xia, Yaping Wang, Quting Zhang, Jiawei Wang, Xin Liu, Jie An, Peng Xu, Meng Luo, Shunhong Yan, Caihua Yu, Wusan Da, Qifeng Hou, Da Yu Liu, Hongwen Tian, Jiajia Chen, Chenggang Huang, Yurong Bian, Chunyang Hua, Chao Li, Jie Yi Tian, Yong Qiang Wu, Shao Ru He, Ming Ming Yang, Shun Ping Li, Yan Jiang, Peide Fu, Yi Hai Zhong, Xingfen Fang, Jian Zhou, Zien Li, Wei Niu, Yutao He, Ran Zhou, Wei Feng, Ying Wu Zhang, Xiaolei Chen, Xiao Long, Ran Yong, Lu Zuo, Hai Tao Lan, Xiaozhong He, Bin Ma, Guiping Ran, Huan Liu, Jie Cao, Guangying Xiao, Ming Chen, Lixia Shao, Yuchun Yu, Bo Huang, Hui Ying Huan Chun Ting Li, Xiangxian Li, Yaping Yang, Bing Chen, Fei Kong, Li Zhanc, Xiao Xia Liu, Ping Deng, Jian Xu, Ting Gao, Xiping Luo, Songmin Wang, Yibo 176 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Wang, Shumei Wang, Zhi Yi Li, Shi Min Dai, Jing Li, Chenxi Zhao, Yang Liu, Mei Zhang, Man Yi Michelle Tang, Xuelin Zhang, Yanli Wei, Jin Liu, Yuanyuan Dong, Ennian Jin, Zhi Li, Appellants and The Minister of Citizenship and Immigration, Respondent Ali Raza Jafri, Appellants and The Minister of Citizenship and Immigration, Respondent Mae Joy Tabingo, et al, Appellants and The Minister of Citizenship and Immigration, Respondent Yanjun Yin, Appellants and The Minister of Citizenship and Immigration, Respondent Maria Sari Teresa Borja Austria, Appellants and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-180-13, A-181-13, A-183-13, A-185-13, A-186-13 2014 FCA 191 K. Sharlow, Eleanor R. Dawson, David Stratas JJ.A. Heard: June 23-24, 2014 Judgment: August 21, 2014 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — General principles –––– Aliens brought applications for permanent residence in Canada in federal skilled workers (FSW) class, prior to February 27, 2008 — Significant backlog existed in processing of FSW applications, and backlog was increasing — In 2012, Parliament amended Immigration and Refu- gee Protection Act to add s. 87.4 — By application of s. 87.4 of Act as amended, FSW class applications brought before February 27, 2008 were automatically quashed and dismissed unless application was processed and decided upon by March 29, 2012 — Aliens’ applications were quashed pursuant to s. 87.4 of Act and aliens brought application for judicial review, alleging inter alia that impugned provision violated aliens’ rights to life, liberty and security of the person and to equality before law as guaranteed by ss. 7 and 15(1) of Canadian Charter of Rights and Freedoms and unjust retrospective termination of vested rights — Application was dismissed and aliens appealed — Appeal dismissed — Aliens had no vested right to have FSW permanent residence applications processed to completion — It did not offend rule of law to permit legislator to retrospectively quash applications to potentially acquire such a right — Plain and obvious intent of statute was to retrospectively quash aliens’ applications, and given absence of vested right mandamus did not lie to order processing of FSW applications and appeal was properly dismissed — Record indicated that different out-of-Canada Tabingo v. Canada (MCI) 177 visa processing stations had different processing times, including different systemic delay periods — However, record further indicated that “slower” stations tended to be so due to regional political instability or to natural disasters, factors not within control of government of Canada and not attracting s. 15(1) Charter equality rights analysis — In respect of aliens’ s. 7 Charter claims, aliens had right to bring FSW applications and to have those applications considered pursuant to Act — Those rights did not engage s. 7 Charter security of person rights, and appeal was accordingly properly dismissed. Constitutional law –––– Charter of Rights and Freedoms — Scope of application — Who having rights under Charter — General principles –––– Aliens brought applications for permanent residence in Canada in federal skilled workers (FSW) class, prior to February 27, 2008 — Significant backlog existed in processing of FSW applications, and backlog was increasing — In 2012, Par- liament amended Immigration and Refugee Protection Act to add s. 87.4 — By application of s. 87.4 of Act as amended, FSW class applications brought before February 27, 2008 were automatically quashed and dismissed unless application was processed and decided upon by March 29, 2012 — Aliens’ applications were quashed pursuant to s. 87.4 of Act and aliens brought application for judicial review, alleging inter alia that impugned provision violated aliens’ rights to life, liberty and security of the person and to equality before law as guaranteed by ss. 7 and 15(1) of Canadian Charter of Rights and Freedoms — Application was dismissed and aliens appealed — Appeal dismissed — Record indicated that different out-of-Canada visa processing stations had different processing times, including different systemic delay periods — However, record further indicated that “slower” stations tended to be so due to regional political instability or to natural disasters, factors not within control of government of Canada and not attracting s. 15(1) Charter equality rights analysis — In respect of aliens’ s. 7 Charter claims, aliens had right to bring FSW applications and to have those applications considered pursuant to Act — Those rights did not engage s. 7 Charter security of person rights, and appeal was accordingly properly dismissed. Statutes –––– Retroactive and retrospective operation — Vested rights — Repeal –––– Aliens brought applications for permanent residence in Canada in federal skilled workers (FSW) class, prior to February 27, 2008 — Significant backlog existed in processing of FSW applications, and backlog was increasing — In 2012, Parliament amended Immigration and Refugee Protection Act to add s. 87.4 — By application of s. 87.4 of Act as amended, FSW class applications brought before February 27, 2008 were automatically quashed and dismissed unless application was processed and decided upon by March 29, 2012 — Aliens’ applications were quashed pursuant to s. 87.4 of Act and aliens brought application for judicial review, alleging inter alia unjust retrospective termination of vested rights — Application was dismissed and aliens ap- 178 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

pealed — Appeal dismissed — Aliens had no vested right to have FSW permanent residence applications processed to completion — It did not offend rule of law to permit legislator to retrospectively quash applications to potentially acquire such a right — Plain and obvious intent of statute was to retrospectively quash aliens’ applications, and given absence of vested right mandamus did not lie to order processing of FSW applications and appeal was properly dismissed. Cases considered by K. Sharlow J.A.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — considered Authorson (Litigation Guardian of) v. Canada (Attorney General) (2003), (sub nom. Authorson v. Canada (Attorney General)) 2003 C.E.B. & P.G.R. 8051, (sub nom. Authorson v. Canada (Attorney General)) 227 D.L.R. (4th) 385, (sub nom. Authorson v. Canada (Attorney General)) 109 C.R.R. (2d) 220, (sub nom. Authorson v. Canada (Attorney General)) 306 N.R. 335, (sub nom. Authorson v. Canada (Attorney General)) 66 O.R. (3d) 734 (note), (sub nom. Authorson v. Canada (Attorney General)) [2003] 2 S.C.R. 40, 2003 CarswellOnt 2773, 2003 CarswellOnt 2774, 2003 SCC 39, 36 C.C.P.B. 29, (sub nom. Authorson v. Canada (Attorney General)) 175 O.A.C. 363, 4 Admin. L.R. (4th) 167, [2003] S.C.J. No. 40, REJB 2003-44762 (S.C.C.) — considered Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — considered British Columbia v. Imperial Tobacco Canada Ltd. (2005), 45 B.C.L.R. (4th) 1, [2005] 2 S.C.R. 473, 134 C.R.R. (2d) 46, 2005 SCC 49, 2005 CarswellBC 2207, 2005 CarswellBC 2208, 257 D.L.R. (4th) 193, [2006] 1 W.W.R. 201, 218 B.C.A.C. 1, 359 W.A.C. 1, 339 N.R. 129, 27 C.P.C. (6th) 13, EYB 2005-95296, [2005] S.C.J. No. 50, [2004] S.C.C.A. No. 302 (S.C.C.) — considered Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 Car- swellNat 18, 1992 CarswellNat 653, EYB 1992-67215, [1992] S.C.J. No. 27 (S.C.C.) — considered Tabingo v. Canada (MCI) 179

Choi v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 265, 139 N.R. 182, [1992] 1 F.C. 763, 6 Admin. L.R. (2d) 94, 54 F.T.R. 160 (note), 1991 CarswellNat 99, 1991 CarswellNat 817 (Fed. C.A.) — considered de Guzman v. Canada (Minister of Citizenship & Immigration) (2005), 42 Ad- min. L.R. (4th) 234, 2005 FCA 436, 2005 CarswellNat 4381, 51 Imm. L.R. (3d) 17, 262 D.L.R. (4th) 13, 137 C.R.R. (2d) 20, [2006] 3 F.C.R. 655, 345 N.R. 73, 2005 CarswellNat 6009, 139 C.R.R. (2d) 376 (note), [2005] F.C.J. No. 2119 (F.C.A.) — considered Dikranian c. Québec (Procureur général) (2005), 2005 SCC 73, 2005 Carswell- Que 10752, 2005 CarswellQue 10753, (sub nom. Dikranian v. Québec (Procureur Général)) 260 D.L.R. (4th) 17, (sub nom. Dikranian v. Quebec (Attorney General)) 342 N.R. 1, [2005] 3 S.C.R. 530, [2005] S.C.J. No. 75 (S.C.C.) — considered Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, (sub nom. Doré v. Barreau du Québec) 255 C.R.R. (2d) 289, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12 (S.C.C.) — considered Dragan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CFPI 211, [2003] 4 F.C. 189, 2003 CarswellNat 1525, 227 F.T.R. 272, 2003 Car- swellNat 467, 2003 FCT 211, 27 Imm. L.R. (3d) 157, 224 D.L.R. (4th) 738, [2003] F.C.J. No. 260 (Fed. T.D.) — considered Gustavson Drilling (1964) Ltd. v. Minister of National Revenue (1975), 1975 CarswellNat 330, [1976] C.T.C. 1, 75 D.T.C. 5451, 66 D.L.R. (3d) 449, 7 N.R. 401, 1975 CarswellNat 376, [1977] 1 S.C.R. 271, [1975] S.C.J. No. 116 (S.C.C.) — considered Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — considered Li v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CAF 110, 2011 CarswellNat 1944, 96 Imm. L.R. (3d) 1, 420 N.R. 30, [2012] 4 F.C.R. 479, 2011 CarswellNat 754, 2011 FCA 110 (F.C.A.) — considered McDoom v. Canada (Minister of Manpower & Immigration) (1977), 1977 Car- swellNat 102, 1977 CarswellNat 102F, [1978] 1 F.C. 323, 77 D.L.R. (3d) 559, [1977] F.C.J. No. 148 (Fed. T.D.) — considered Saputo Inc. v. Canada (Attorney General) (2011), 414 N.R. 45, 2011 CAF 69, 2011 CarswellNat 2483, [2012] 4 F.C.R. 499, 2011 CarswellNat 431, 2011 FCA 69 (F.C.A.) — considered 180 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Zhu v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 155, 2013 CarswellNat 831, 427 F.T.R. 239 (Eng.), 2013 FC 155, 2013 Car- swellNat 286 (F.C.) — considered Statutes considered: Canadian Bill of Rights, S.C. 1960, c. 44, Pt. I, reprinted R.S.C. 1985, App. III s. 1(a) — considered s. 2(e) — considered Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 6(1) — considered s. 7 — considered s. 15 — considered s. 15(1) — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.4(2) [en. 1990, c. 8, s. 5] — referred to Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 2(1) “permanent resident” — considered s. 3(1) — considered s. 3(1)(a) — considered s. 3(1)(c) — considered s. 3(1)(e) — considered s. 3(1)(f) — considered s. 3(3) — considered s. 3(3)(d) — considered s. 5 — considered s. 5(1) — considered s. 5(1.1) [en. 2012, c. 19, s. 702] — referred to s. 11(1) — considered s. 12 — considered s. 12(1) — considered s. 12(2) — considered s. 14 — considered s. 14(1) — considered s. 14(2) — considered s. 21(1) — considered s. 25 — considered s. 25.1 [en. 2010, c. 8, s. 5] — considered s. 25.2 [en. 2010, c. 8, s. 5] — considered s. 27(1) — referred to Tabingo v. Canada (MCI) 181

s. 34 — referred to ss. 34-41 — referred to s. 35 — referred to s. 37 — referred to s. 46 — considered s. 74(d) — considered s. 87.4 [en. 2012, c. 19, s. 707] — considered s. 87.4(1) [en. 2012, c. 19, s. 707] — considered s. 94 — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 41 — referred to R. 316 — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to Pt. 3 — referred to Pt. 4 — referred to Pt. 6 — referred to Pt. 6, Div. 1 — referred to Pt. 6, Div. 2 — referred to Pt. 6, Div. 3 — referred to s. 11(1) — considered ss. 73-115 — referred to s. 75 — considered ss. 75-85 — referred to s. 75(2) — considered s. 75(3) — considered s. 76 — considered s. 76(1)(a) — considered s. 76(1)(b) — considered s. 76(2) — considered s. 76(3) — considered s. 76(4) — considered s. 77 — considered s. 78 — considered s. 79 — considered s. 80 — considered s. 81 — considered s. 82 — considered s. 82(2)(a) — considered 182 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

s. 82(2)(b) — considered s. 82(2)(c) — considered s. 82(2)(d) — considered s. 83 — considered

APPEAL by aliens from judgment reported at Tabingo v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 377, 2013 CF 377, 2013 Car- swellNat 1030, 2013 CarswellNat 1031, 362 D.L.R. (4th) 166, 281 C.R.R. (2d) 257, 18 Imm. L.R. (4th) 1, 431 F.T.R. 118 (Eng.) (F.C.), dismissing aliens’ application for judicial review of decision quashing aliens’ applications for permanent residence in Canada in federal skilled worker class.

Rocco Galati, for Appellants, Sumera Shahid et al Martin Anderson, Keith Reimer, Jocelyn Espejo Clarke, Julian (Charles) Jubenville, for Respondent Matthew Jeffery, for Appellants, Ali Raza Jafri Mario D. Bellissimo, Erin Roth, for Appellants, Mae Joy Tabingo, et al, Maria Sari Teresa Borja Austria Naseem Mithoowani, for Appellants, Yanjun Yin

K. Sharlow J.A.:

1 The Minister of Citizenship and Immigration has refused to process the applications of approximately 1,400 foreign nationals who applied before February 27, 2008 for permanent resident visas as members of the federal skilled worker class. They each applied to the Federal Court for judicial review of the Minister’s refusal. They sought a number of reme- dies, including an order of mandamus requiring the Minister to process their permanent resident visa applications. The applications for judicial review were heard together based on eight cases that were agreed to be representative of all of the others. Justice Rennie dismissed the applications for judicial review for reasons reported as Tabingo v. Canada (Minister of Citizenship and Immigration), 2013 FC 377 (F.C.). 2 The Minister’s refusal to process the appellants’ permanent resident visa applications was based on subsection 87.4(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). Section 87.4 was added to the IRPA by section 707 of the Jobs, Growth and Long- term Prosperity Act, S.C. 2012, c. 19. It was proclaimed in force June 29, 2012. Subsection 87.4(1) reads as follows: 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers Tabingo v. Canada (MCI) K. Sharlow J.A. 183

that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. 87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables a` cette catégorie. 3 I summarize as follows the principal conclusions reached by Justice Rennie in dismissing the appellants’ applications for judicial review: (a) Subsection 87.4(1) of the IRPA terminates an application for a permanent resident visa as a member of the federal skilled worker class on June 29, 2012 if the application was made before Febru- ary 27, 2008, and it was not determined before March 29, 2014 whether the applicant met the selection criteria and other requirements applicable to the federal skilled worker class. (b) After June 29, 2012, the Minister had no legal obligation to consider an application described in subsection 87.4(1). (c) The language of subsection 87.4(1) is sufficiently clear to rebut the presumption against the retrospective application of a statute. (d) The statutory conditions stated in subsection 87.4(1) are objective facts. The process of identifying which applications are within the scope of subsection 87.4(1) is an administrative review involving no discretion or adjudication. (e) The termination of an application by subsection 87.4(1) does not contravene section 1(a) or 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, or the rule of law. (f) Section 7 of the Canadian Charter of Rights and Freedoms is not engaged by the termination of an application pursuant to subsection 87.4(1). (g) The appellants have not established that the implementation of subsection 87.4(1) discriminates against them on any of the grounds referred to in subsection 15(1) of the Charter or an analogous ground. 4 To permit an appeal to this Court, Justice Rennie certified the following questions pursuant to paragraph 74(d) of the IRPA: 184 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

(a) Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus? (b) Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA? (c) Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Charter? 5 The appellants in these five appeals represent all of the original applicants who appealed. 6 These reasons are organized into four parts. Part I summarizes the relevant facts relating to each appellant. Part II describes the statutory scheme, which consists of certain provisions of the IRPA (including section 87.4) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). Part III discusses the grounds of appeal. Part IV summarizes my conclusions.

I. Facts 7 Each of the appellants applied before February 27, 2008 for a permanent resident visa as a member of the federal skilled worker class. Some of the applications were submitted in 2005, others in 2007. None of the applications were processed to completion. Most of the appellants made frequent enquiries about the progress of the applications, and received assurances that the applications would be processed eventually. In each case, all processing stopped after June 29, 2012 because of the enactment of section 87.4 of the IRPA. 8 The appellants incurred expenses for representation costs, application fees, and the cost of obtaining and submitting the extensive documentation required in support of their applications. They also suffered significant stress while waiting years for their applications to be processed. Al- though they are entitled to a return of the fees they have paid under the IRPA, they were hoping to be given the chance to establish themselves in Canada and they consider the loss of that opportunity to be substantial. Understandably, they consider it unfair that their applications have been terminated without regard to their merits. 9 The specific facts for each appellant are as follows: (a) Ms. Fang Wei (A-180-13) applied in 2007 to the visa post in Hong Kong. She had been married in China on May 1, 2006. Her Tabingo v. Canada (MCI) K. Sharlow J.A. 185

husband subsequently became a permanent resident and a citizen of Canada. For technical reasons that are not relevant to her appeal, her husband has been unable to sponsor her. (b) Ms. Sumera Shadid (A-180-13) applied in 2007 to the visa post in Islamabad. Her application was transferred to the London visa post on December 29, 2010. (c) Mr. Ali Raza Jafri (A-181-13) is a citizen of Pakistan. He applied in 2007 to the visa post in Islamabad. (d) Ms. Mae Joy Tabingo (A-183-13) applied in 2005 to the visa post in Manila for herself, her husband and their children. (e) Mr. Yanjun Yin (A-185-13) is a citizen of China. He applied in 2007 for himself and his wife. (f) Ms. Maria Sari Teresa Borja Austria (A-186-13) applied in 2005 to the Manila visa post. 10 It is not possible to determine with certainty whether the appellants would have been granted permanent resident visas if subsection 87.4(1) of the IRPA had not been enacted. However, the Minister has referred to nothing in the record that raises any doubt as to the eligibility of the appellants to be selected as members of the federal skilled worker class.

II. The statutory scheme 11 By virtue of subsection 6(1) of the Charter, and historically at common law, every Canadian citizen has the unconditional right to enter and remain in Canada. The right of anyone else to enter and remain in Can- ada is governed by the IRPA and its predecessor statute, the Immigration Act, R.S.C. 1985, c. I-2 (see Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 (S.C.C.)). 12 A “permanent resident” as defined in the IRPA has the qualified right to enter and remain in Canada pursuant to subsection 27(1) of the IRPA. “Permanent resident” is defined in subsection 2(1) of the IRPA as a person who has acquired permanent resident status under the IRPA and has not subsequently lost that status under section 46 of the IRPA. Subsec- tion 11(1) of the IRPA provides that a foreign national who wishes to become a permanent resident must apply for the appropriate visa from outside Canada (subject to exceptions that do not apply to the appellants). 13 Pursuant to subsection 21(1) of the IRPA, a foreign national becomes a permanent resident if an immigration officer is satisfied that the foreign 186 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

national has applied for that status, holds the visa required to establish his or her entitlement to that status, and is not inadmissible. Pursuant to sections 34 to 41 of the IRPA, a person may be inadmissible on numerous grounds including, for example, grounds relating to security, criminality, health, financial circumstances, misrepresentation, failure to comply with a condition imposed under the Regulations or a Ministerial instruction relating to economic immigration, and failure to comply with the residence requirements for permanent residents. 14 Pursuant to sections 25 and 25.1 of the IRPA, the Minister has the discretion to grant relief on humanitarian and compassionate grounds from any statutory requirement for permanent resident status, except to a person who is inadmissible under section 34 (security), section 35 (violation of human or international rights) or section 37 (organized criminality). The relief may be granted either on the application of the person affected (subject to the payment of a fee unless the fee is waived), or on the Minister’s own initiative. No submissions were made in these appeals as to whether the appellants are entitled to seek this relief. Section 25.2 of the IRPA permits the Minister to grant similar discretionary relief on public policy grounds. 15 There is a dispute in these appeals as to the correct interpretation of section 87.4 of the IRPA. The resolution of that dispute is informed by subsection 3(1) of the IRPA, which states the objectives of the IRPA with respect to immigration, and subsection 3(3) which states the principles to be applied in construing and applying the IRPA. Those provisions read in relevant part as follows: 3. (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; ..... (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; ..... (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Govern- ment of Canada in consultation with the provinces; ... Tabingo v. Canada (MCI) K. Sharlow J.A. 187

(3) This Act is to be construed and applied in a manner that ..... (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; ... 3. (1) En matière d’immigration, la présente loi a pour objet: a) de permettre au Canada de retirer de l’immigration le maximum d’avantages sociaux, culturels et economiques;´ [...] c) de favoriser le développement economique´ et la prospérité du Can- ada et de faire en sorte que toutes les régions puissent bénéficier des avantages economiques´ découlant de l’immigration; [...] e) de promouvoir l’intégration des résidents permanents au Canada, compte tenu du fait que cette intégration suppose des obligations pour les nouveaux arrivants et pour la société canadienne; f) d’atteindre, par la prise de normes uniformes et l’application d’un traitement efficace, les objectifs fixés pour l’immigration par le gouvernement fédéral après consultation des provinces; [...]. (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet: [...] d) d’assurer que les décisions prises en vertu de la présente loi sont conformes a` la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du fran¸cais et de l’anglais a` titre de langues officielles du Canada; [...]. 16 Paragraph 3(3)(d) of the IRPA is a statement of the principle that a discretionary administrative decision must be consistent with the Charter values underlying the grant of discretion. Authority for that principle is found in a line of cases, the most recent of which is Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.) (at paragraph 24). 17 The IRPA is framework legislation. It states basic principles and policies, leaving secondary policies, implementation, and operational matters to be dealt with in Regulations. This is explained by Justice Evans, writ- 188 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

ing for the Court in de Guzman v. Canada (Minister of Citizenship & Immigration), 2005 FCA 436 (F.C.A.) at paragraph 23: [The IRPA] contains the core principles and policies of the statutory scheme and, in view of the complexity and breadth of the subject- matter, is relatively concise. The creation of secondary policies and principles, the implementation of core policy and principles, including exemptions, and the elaboration of crucial operational detail, are left to regulations, which can be amended comparatively quickly in response to new problems and other developments. 18 Section 5 of the IRPA grants the Governor in Council the authority to make regulations. It reads as follows: 5. (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act. 5. (1) Le gouverneur en conseil peut, sous réserve des autres dispositions de la présente loi, prendre les règlements d’application de la présente loi et toute autre mesure d’ordre réglementaire qu’elle prévoit. 19 Most of the conditions for immigration to Canada are set out in Regu- lations enacted pursuant to subsection 14(1) of the IRPA, which reads in relevant part as follows: 14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division. (2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting (a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada; (b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members; (c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may Tabingo v. Canada (MCI) K. Sharlow J.A. 189

be issued in a year, and the measures to be taken when that number is exceeded; (d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; .... 14. (1) Les règlements régissent l’application de la présente section et définissent, pour l’application de la présente loi, les termes qui y sont employés. (2) Ils etablissent´ et régissent les catégories de résidents permanents ou d’étrangers, dont celles visées a` l’article 12, et portent notamment sur: a) les critères applicables aux diverses catégories, et les méthodes ou, le cas ech´´ eant, les grilles d’appréciation et de pondération de tout ou partie de ces critères, ainsi que les cas où l’agent peut substituer aux critères son appréciation de la capacité de l’étranger a` réussir son etablissement´ economique´ au Canada; b) la demande, la délivrance et le refus de délivrance de visas et autres documents pour les étrangers et les membres de leur famille; c) le nombre de demandes à traiter et dont il peut être disposé et celui de visas ou autres documents à accorder par an, ainsi que les mesures à prendre en cas de dépassement; d) les conditions qui peuvent ou doivent être, quant aux ré- sidents permanents et aux etrangers,´ imposées, modifiées ou levées, individuellement ou par catégorie; [...].

A. The federal skilled worker class 20 Section 12 of the IRPA specifies two classes of permanent resident, apart from refugees and persons in similar circumstances. A member of the “family class” is selected on the basis of a specified family relationship with a Canadian citizen or permanent resident (subsection 12(1) of the IRPA). A member of the “economic class” is selected on the basis of the ability to become economically established in Canada (subsection 12(2) of the IRPA). The appellants were all seeking to be selected as members of the economic class. 21 It is the position of the Minister that the creation of the economic class is intended to further the objectives stated in paragraphs 3(a), (c), (e) and (f) of the IRPA, quoted above. That suggests that the interpretation and application of the provisions of the IRPA relating to the federal 190 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

skilled worker class is informed by Parliament’s stated intention to permit Canada to pursue the maximum social, cultural and economic benefits of immigration, to support the development of a strong and prosperous Canadian economy, to promote the successful integration of permanent residents into Canada, and to support the attainment of immigration goals established by the federal government.

B. Regulations — federal skilled worker class 22 The Governor in Council has exercised the authority under section 14 of the IRPA to enact detailed regulations relating to immigration applications, including the applications in issue in these appeals. Although the Regulations are amended frequently and some amendments were made after the appellants’ visa applications were made, it has not been suggested that any of those amendments have a bearing on any of the issues in this appeal. For that reason, the following summary of the relevant Regulations is based on the Regulations as they now read. 23 According to subsection 11(1) of the Regulations, an application for a permanent resident visa (except an application by a refugee or a person in similar circumstances) must be made to a particular visa office (some- times called a “visa post”). Subsection 11(1) reads as follows: 11. (1) An application for a permanent resident visa — other than an application for a permanent resident visa made under Part 8 — must be made to the immigration office that serves (a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year; or (b) the applicant’s country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted. 11. (1) L’étranger fait sa demande de visa de résident permanent — autre que celle faite au titre de la partie 8 — au bureau d’immigration qui dessert: a) soit le pays dans lequel il réside, s’il y a et´´ e légalement admis pour une période d’au moins un an; b) soit le pays dont il a la nationalité ou, s’il est apatride, le pays dans lequel il a sa résidence habituelle— autre que celui où il n’a pas et´´ e légalement admis. Tabingo v. Canada (MCI) K. Sharlow J.A. 191

24 Part 6 of the Regulations (sections 73 to 115) states the selection criteria for members of the economic class. It divides the members of the economic class into three categories: skilled workers (Division 1 of Part 6), business immigrants (Division 2 of Part 6), and live-in caregivers (Di- vision 3 of Part 6). 25 The skilled worker class is further divided into six subcategories: the federal skilled worker class, the transitional federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the Cana- dian experience class, and the federal skilled trades class. All of the appellants are seeking to be selected in the first subcategory, the federal skilled worker class. The selection criteria for immigration applicants of that class are set out in sections 75 to 85 of the Regulations. 26 An applicant may be selected as a member of the federal skilled worker class if: (a) the applicant is determined pursuant to section 75 of the Regulations to be a skilled worker, (b) the applicant is determined pursuant to section 76 of the Regulations to have the ability to become economically established in Canada, and (c) the applicant intends to reside in a province other than Quebec. The applicant must meet these conditions on the date on which the application is made and on the date on which the visa is issued (section 77 of the Regulations).

(1) Skilled Worker — section 75 27 Subsection 75(2) of the Regulations sets out detailed requirements for the assessment of the occupational skills of an applicant. If those requirements are met, the applicant is a “skilled worker” as defined in subsection 75(2). 28 Pursuant to subsection 75(2) of the Regulations, the applicant’s primary occupation must fall into a prescribed category in the National Oc- cupational Classification matrix published by Human Resources and Skills Development Canada, and the applicant’s work experience must meet prescribed conditions. If the primary occupation does not qualify, or if the work experience conditions are not met, the application is refused pursuant to subsection 75(3) of the Regulations and is given no further consideration. Otherwise, the applicant qualifies as a skilled worker and is assessed for the ability to become economically established in Canada. 192 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

(2) Ability to become economically established in Canada — section 76 29 A skilled worker cannot be selected as a member of the federal skilled worker class unless it is determined pursuant to section 76 of the Regulations that he or she will be able to become economically established in Canada. Section 76 states two sets of requirements for that assessment. One set of requirements is intended to assess the applicant’s personal characteristics (paragraph 76(1)(a) of the Regulations). The other set of requirements is intended to assess the applicant’s financial resources and employment prospects in Canada (paragraphs 76(1)(b) of the Regulations).

(a) Personal characteristics — Regulations, paragraph 76(1)(a) 30 To assess a skilled worker’s personal characteristics, an immigration officer assigns points to six factors pursuant to paragraph 76(1)(a) of the Regulations. The skilled worker must obtain a specified minimum number of points to be accepted as a person who will be able to become economically established in Canada. 31 The required minimum number of points is fixed by the Minister pursuant to subsection 76(2) of the Regulations based on the number of federal skilled worker class applications currently being processed, the number of skilled workers projected to become permanent residents according to a report to Parliament under section 94 of the IRPA and the potential, taking into account economic and other relevant factors, for the establishment of skilled workers in Canada. 32 The six factors specified in paragraph 76(1)(a) of the Regulations for the assessment of the applicant’s personal characteristics are: (a) education (section 78 of the Regulations — from 5 points for a secondary school credential to 25 points for a university level credential at the doctoral level), (b) proficiency in an official language of Canada (section 79 of the Regulations — a maximum of 24 points for proficiency in English or French and a maximum of 4 additional points for proficiency in the other official language), (c) work experience (section 80 of the Regulations — a maximum of 15 points for six or more years of work experience within the last 10 years), Tabingo v. Canada (MCI) K. Sharlow J.A. 193

(d) age (section 81 of the Regulations — a maximum of 12 points for an applicant between 18 and 36 years of age, with one less point for each additional year over 36), (e) arranged employment in a specified occupation or skill for full- time work in Canada that is non-seasonal and indeterminate (section 82 of the Regulations — a maximum of 10 points if the applicant holds a work permit that meets the conditions in paragraph 82(2)(a), (b) or (d) of the Regulations, or if the applicant has a job offer from a Canadian employer that meets the conditions in paragraph 82(2)(c) of the Regulations), and (f) adaptability (section 83 of the Regulations — a maximum of 10 points for certain Canadian work or study experience of the applicant or the applicant’s accompanying spouse or common law partner). 33 If the immigration officer conducting the assessment concludes that the criteria in paragraph 76(1)(a) of the Regulations are not a sufficient indicator of the applicant’s ability to become economically established in Canada, the officer may substitute a different evaluation if a second officer concurs (subsections 76(3) and (4) of the Regulations).

(b) Financial resources and employment prospects — paragraph 76(1)(b) 34 Paragraph 76(1)(b) of the Regulations provides that the skilled worker must have transferable and available funds in a specified amount, or must be awarded points under paragraph 76(1)(a) of the Regulations for arranged employment that meets the conditions in paragraphs 82(2)(a), (b) or (d) of the Regulations.

C. The normal processing of a permanent resident visa application 35 When an application for a permanent resident visa is received at the appropriate visa post with the required fee, an acknowledgement letter is sent to the applicant. The first examination of the application may not occur for years, so that much of the information becomes out of date before the application is considered. When the examination of an application is commenced after a long delay, the applicant generally is requested to submit updated information. The request for updated information is assumed by applicants to mean that the processing of their application is almost complete. However, it is not uncommon for the next step to take several months. 194 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

36 Once an officer determines from the documentation whether the applicant meets the requirements for selection as a member of the federal skilled worker class, a selection decision is made. Normally, that decision is documented by the notation “SELDEC” in the applicant’s file on the Computer Assisted Immigration Processing System (“CAIPS”) or the notation “Eligibility — Passed” or “Eligibility — Failed” in the Global Case Management System (“GCMS”). There may be other notes in the CAIPS or GCMS that document the determination before any SELDEC, Eligibility — Passed or Eligibility — Failed notation is made. 37 The next stage requires a review of documents relating to admissibility, such as medical and police documentation. If that review has a positive outcome, the applicant is requested to pay the required fee and submit a passport. It normally takes two to three months for the passport to be returned to the applicant with the permanent resident visa affixed. 38 At any time during the processing, a question may arise as to whether the applicant is eligible for selection as a member of the federal skilled worker class or is inadmissible. In that event, the applicant is sent a letter (referred to as a fairness letter) disclosing the new issue and requiring a response within a specified time. There is no statutory time limit for determining the new issue.

D. Section 87.4 of the IRPA 39 Section 87.4 came into force on June 29, 2012. It reads in full as follows: 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. (2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012. (3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa. (4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund. Tabingo v. Canada (MCI) K. Sharlow J.A. 195

(5) No person has a right of recourse or indemnity against Her Maj- esty in connection with an application that is terminated under subsection (1). 87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables a` cette catégorie. (2) Le paragraphe (1) ne s’applique pas aux demandes à l’égard desquelles une cour supérieure a rendu une décision finale, sauf dans les cas où celle-ci a et´´ e rendue le 29 mars 2012 ou après cette date. (3) Le fait qu’il a et´´ e mis fin à une demande de visa de résident permanent en application du paragraphe (1) ne constitue pas un refus de délivrer le visa (4) Les frais versés au ministre à l’égard de la demande visée au paragraphe (1), notamment pour l’acquisition du statut de résident permanent, sont remboursés, sans intérêts, a` la personne qui les a ac- quittés; ils peuvent être payés sur le Trésor. (5) Nul n’a de recours contre sa Majesté ni droit à une indemnité de sa part relativement à une demande à laquelle il est mis fin en vertu du paragraphe (1). 40 The Minister takes the position that on June 29, 2012, subsection 87.4(1) terminated the permanent resident visa applications in issue in this appeal because on that date the applications met the conditions stated in that provision. No steps were taken by the Minister after that date to complete the processing of the applications. 41 According to evidence presented for the Minister, the enactment of subsection 87.4(1) was intended to deal with an unacceptable backlog of applications for permanent resident visas for the federal skilled worker class. 42 Between 2002 and 2012, the Minister received and processed applications for permanent resident visas from over 2.4 million persons seeking to be selected as members of the economic class. That included more than one million applications from persons seeking to be selected as members of the federal skilled worker class. 43 During those years hundreds of thousands of federal skilled worker applications were processed in the New Delhi, Islamabad, Manila, Hong Kong and Beijing visa posts. Thousands more applications from nationals of India, Pakistan, the Philippines and China were processed at visa 196 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

posts in Buffalo, London, Paris, Sydney and Singapore. Despite the number of completed federal skilled worker applications, a significant backlog developed because the number of applications far exceeded the number of federal skilled worker applicants that could be accepted under the government’s annual immigration plans. 44 The Minister considered the existence of a large backlog to be a significant detriment to the immigration program for federal skilled workers. It reduced the program’s flexibility and the government’s ability to respond to changing labour market conditions affecting the prospects of new immigrants to find work and become economically established in Canada. It also reduced public confidence in the effectiveness of the immigration system. 45 Over the years, attempts were made to reduce the backlog by increasing the number of applications processed each year. However, those attempts could not succeed in the face of the limited number of planned annual admissions to Canada, even when they were at historically high levels. 46 In February of 2008, the IRPA was amended to authorize the Minister to make binding instructions reducing or suspending the intake of new applications. However, that step alone was insufficient to remove the backlog. It was projected that the backlog would subsist for some years, and that applicants would suffer wait times of seven to eight years. At the same time, there was evidence of declining income and higher levels of unemployment among new immigrants. The government considered that situation to be unacceptable as a matter of policy. 47 Section 87.4 was enacted in order to eliminate the backlog in a single step, enabling the government to focus on newer permanent resident visa applications from persons with pre-arranged employment. After its introduction, efforts were made to “mine” the backlog for potentially successful federal skilled worker applications, and many successful applications resulted from that effort. However, not all meritorious applications were or could have been identified. The applications in issue in this case might have succeeded if they had not been terminated by subsection 87.4(1). 48 The appellants have suggested that the backlog might have been ex- acerbated by subsection 11(1) of the Regulations (enacted in 2002) that stipulated which visa post an applicant was required to use. Prior to that change, an applicant could choose to submit the application to a post with a shorter queue. When that was no longer possible, applicants who were obliged to submit their applications to a high volume visa post suf- Tabingo v. Canada (MCI) K. Sharlow J.A. 197

fered substantial processing delays if the visa post was not provided with sufficient resources. 49 On April 4, 2012, Citizenship and Immigration Canada (CIC) issued Operational Bulletin 400. It was intended to explain the effect of section 87.4, which at that time had been introduced but not enacted. It stated that the processing of applications for permanent resident visas for members of the federal skilled worker class should not commence or continue if the application was made before February 27, 2008 and no selection decision was made before March 29, 2012. Operational Bulletin 400 was intended to have the same effect as subsection 87.4(1) before it was enacted. After a legal challenge, Operational Bulletin 400 was rescinded. 50 On June 29, 2012, the date on which subsection 87.4(1) came into effect, CIC issued Operational Bulletin 442 to provide immigration officers with processing instructions that were intended to give effect to subsection 87.4(1) as then construed by the Minister. The parts of Opera- tional Bulletin 442 that reflect the Minister’s interpretation of subsection 87.4(1) are reproduced as an appendix to these reasons.

III. Discussion 51 Each appellant has raised slightly different arguments, but many of their arguments overlap. In my view the arguments may be reduced to these questions: (a) What is the standard of review? (b) In determining whether subsection 87.4(1) of the IRPA terminated an application for a permanent resident visa, does subsection 87.4(1) require only that objective facts be discerned from the application file, or must an immigration officer conduct an individualized assessment involving the exercise of discretion? (c) Does the Canadian Bill of Rights guarantee the appellants procedural rights (including notice and a right to be heard) before their applications are determined to be terminated by subsection 87.4(1) of the IRPA? (d) Does the retrospective effect of subsection 87.4(1) of the IRPA render it invalid as contrary to the rule of law? (e) Do the appellants have a vested right to have their applications considered under the provisions of the IRPA in effect when they made their applications? 198 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

(f) Does the manner in which subsection 87.4(1) of the IRPA was implemented breach the rights of the applicants under subsection 15(1) of the Charter? (g) Does subsection 87.4(1) of the IRPA breach the appellants’ rights under section 7 of the Charter? 52 In the Federal Court, the Minister did not argue that the applicants have no rights under section 7 or subsection 15(1) of the Charter. Justice Rennie expressed reservations on that point but since it was uncontested before him, he declined to make a determination. Rather, he assumed without deciding that the applicants have those rights. 53 In this Court, the Minister argues that the applicants do not have rights under section 7 or subsection 15(1) of the Charter. However, for reasons that will become apparent from the discussion below, I do not consider it necessary to express an opinion on that point.

A. Standard of review 54 The proceeding in the Federal Court was in form an application for judicial review. However, there was no administrative decision maker except the Minister who refused to consider the appellants’ permanent resident visa applications after June 29, 2012 when subsection 87.4(1) of the IRPA came into effect. That refusal was based on the Minister’s interpretation of subsection 87.4(1). The parties who addressed this point agreed that the Minister’s interpretation of subsection 87.4(1) is reviewable on the standard of correctness. 55 In certain circumstances, the Minister’s interpretation of the IRPA may be reviewed on the standard of reasonableness. Under that standard, the Minister may be afforded some deference if the statutory provision contains words of debatable scope or requires the Minister to make a discretionary decision suffused with factual determinations, policy considerations or both (see, for example, Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.), at paragraphs 49 and 50). In this case, however, the words of subsection 87.4(1) are fairly plain and do not admit of more than one acceptable and defensible interpretation. In the end, nothing turns on the standard of review of the Minister’s interpretation of subsection 87.4(1), since I have concluded that his interpretation of subsection 87.4(1) is correct. 56 The facts are undisputed except those made by Justice Rennie relating to the statistical evidence of the backlog in various visa posts. The judge considered that evidence in first instance, not upon a review of a prior Tabingo v. Canada (MCI) K. Sharlow J.A. 199

administrative decision. Therefore, his findings of fact and mixed fact and law relating to that evidence are reviewable on the standard of palpable and overriding error as required by Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) (see Li v. Canada (Minister of Citizenship & Immigration), 2011 FCA 110 (F.C.A.) at paragraph 12, and Saputo Inc. v. Canada (Attorney General), 2011 FCA 69 (F.C.A.) at paragraph 9).

B. Determining whether subsection 87.4(1) applies to an application 57 Subsection 87.4(1) of the IRPA is quoted above and reproduced here for ease of reference: 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. 87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables a` cette catégorie. 58 The Minister argues that to identify a permanent resident visa application that falls within the scope of subsection 87.4(1) it is necessary simply to determine certain facts that are readily ascertainable upon a review of the application file. According to the Minister’s interpretation, if an application was made before February 27, 2008 for a permanent resident visa as a member of the federal skilled worker class (as all of the appellants’ applications were), then it was terminated by subsection 87.4(1) on June 29, 2012 if (a) no immigration officer determined, before March 29, 2012, whether the applicant met the selection criteria and other requirements applicable to that class, or (b) if an immigration officer made such a determination on or after March 29, 2012 but the application was not finalized before June 29, 2012. 59 Justice Rennie agreed with the Minister’s interpretation. He concluded that the “selection criteria” referred to in subsection 87.4(1) means the requirements of section 76 of the Regulations (entitled “selection criteria”) which states the requirements for assessing the ability of a skilled worker to become economically established in Canada. He also 200 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

concluded that the “other requirements applicable to [the federal skilled worker class]” means all other requirements for selection as a member of that class, including those stated in section 75 of the Regulations (the definition of “skilled worker”). 60 No appellant has argued that an immigration officer erred in determining in his or her case whether or when the selection criteria and other requirements applicable to the federal skilled worker class were met. Such a factual dispute may be the subject of a judicial review application in the Federal Court, as the Minister recognized and as Justice Rennie found. However, there is no such factual dispute here. The appellants are arguing that as a matter of statutory interpretation, subsection 87.4(1) is so unclear that its effect on a particular permanent resident visa application cannot be determined without an individualized assessment in which an immigration officer exercises some discretion. 61 I do not accept this argument. A decision is discretionary if the law permits more than one possible outcome on the facts. If the law permits only one possible outcome on the facts, there is no element of discretion. 62 I acknowledge that the status of any given application may be difficult to discern from the file because the CAIPS notes or the GCMS notes are unclear or incomplete. No doubt that is why, for example, Opera- tional Bulletin 442 (appended to these reasons), instructs immigration officers not to rely only on the customary decision notations (“SELDEC” in the CAIPS or “Eligibility — Passed” or “Eligibility — Failed” in the GCMS) when determining whether or when there has been a selection decision. Officers are instructed to examine all of the notes to see if and when a selection decision was in fact made even if the customary notation is absent. However, the possibility of such evidentiary difficulties cannot by itself transform a factual determination into a discretionary decision. 63 The appellants rely on the fact that a number of permanent resident visas were issued in error to applicants who had applied before February 27, 2008 and whose applications should have been terminated by subsection 87.4(1), based on the Minister’s interpretation. Those visas were not rescinded. Rather, the Minister exercised the authority under section 25.2 of the IRPA, citing public policy, to declare those applicants to be eligible for permanent resident visas. That indicates some initial confusion about the implementation of subsection 87.4(1). But it does not follow that the application of subsection 87.4(1) depends upon the discretionary decision of an immigration officer. Tabingo v. Canada (MCI) K. Sharlow J.A. 201

64 The appellants also point out that within an application there may be more than one selection decision. That could occur if, for example, an officer makes a selection decision at a certain point in time, but events occur or new facts are discovered that cause the opposite decision to be made. However, it is always possible to determine whether a decision described in subsection 87.4(1) was made before March 29, 2012, or whether the application was finalized by June 29, 2012. That is all subsection 87.4(1) requires. 65 Finally, the appellants rely on Zhu v. Canada (Minister of Citizenship and Immigration), 2013 FC 155 (F.C.). I do not consider that decision to be inconsistent with the Minister’s interpretation of subsection 87.4(1). Mr. Zhu received a final negative decision dated May 12, 2012. His application file indicated that a negative selection decision had been made on the same day. The judge concluded that because the selection decision was made after March 29, 2012 and a final decision was made before June 29, 2012, subsection 87.4(1) did not apply to his application. There- fore, that provision could not apply to preclude the judge from invalidating the final decision on the basis of procedural unfairness and ordering the application to be reconsidered. 66 As mentioned above, the enactment of subsection 87.4(1) was intended to eliminate a backlog of federal skilled worker applications that the Minister considered so large as to be unmanageable within a reasonable time, and that was impeding the government’s ability to respond to changing labour market conditions as they affected the prospects of new immigrants. Those were valid considerations pursuant to section 3 of the IRPA, in particular paragraphs 3(1)(a), (c), and (e), which are quoted above and repeated here for ease of reference: 3. (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; ..... (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; ..... (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society .... 3. (1) En mati`ere d’immigration, la pr´esente loi a pour objet: 202 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

a) de permettre au Canada de retirer de l’immigration le maximum d’avantages sociaux, culturels et economiques;´ [...] c) de favoriser le développement economique´ et la prospérité du Can- ada et de faire en sorte que toutes les régions puissent bénéficier des avantages economiques´ découlant de l’immigration; [...] e) de promouvoir l’intégration des résidents permanents au Canada, compte tenu du fait que cette intégration suppose des obligations pour les nouveaux arrivants et pour la société canadienne [...] 67 Considering the language, purpose and context of subsection 87.4(1), it cannot reasonably bear an interpretation that requires an immigration officer to exercise discretion in determining whether it terminates a particular application. I do not accept that Parliament intended to put in place a new discretionary administrative process to replace the one that led to an unacceptable backlog of many years. I conclude that the interpretation of subsection 87.4(1) proposed by the Minister and accepted by Justice Rennie is correct.

C. Canadian Bill of Rights 68 The appellants rely on section 2(e) of the Canadian Bill of Rights, which guarantees certain procedural rights in the interpretation and operation of federal laws. Paragraph 2(e) reads as follows: 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridg- ment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; 2. Toute loi du Canada, à moins qu’une loi du Parlement du Canada ne déclare expressément qu’elle s’appliquera nonobstant la Déclara- tion canadienne des droits, doit s’interpréter et s’appliquer de manière a` ne pas supprimer, restreindre ou enfreindre l’un quelcon- que des droits ou des libertés reconnus et déclarés aux présentes, ni a` en autoriser la suppression, la diminution ou la transgression, et en Tabingo v. Canada (MCI) K. Sharlow J.A. 203

particulier, nulle loi du Canada ne doit s’interpréter ni s’appliquer comme [...] e) privant une personne du droit à une audition impartiale de sa cause, selon les principes de justice fondamentale, pour la définition de ses droits et obligations; 69 Section 2(e) of the Canadian Bill of Rights guarantees procedural rights before a tribunal or administrative body that determines individual rights and obligations, but it does not protect anyone from the right of Parliament to terminate a legal right by amending a statute: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40 (S.C.C.), at paragraphs 58 to 61. 70 As explained above, subsection 87.4(1) terminated the appellants’ right to have their permanent resident visa applications processed, and it did so without expressly or implicitly requiring an adjudicative process or a discretionary administrative decision. In my view, section 2(e) of the Canadian Bill of Rights is of no assistance to the appellants.

D. Rule of law 71 The appellants argue that subsection 87.4(1) is invalid because it is so arbitrary that it offends the principle of the rule of law. The appellants characterize the provision as arbitrary because of its retrospective application to permanent resident visa applications that were pending before subsection 87.4(1) came into force, which were terminated without regard to their prospects of success. 72 British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 (S.C.C.) is instructive on this point. In that case, tobacco companies challenged the validity of a provincial law that permitted the province to sue a manufacturer of tobacco products to recover the costs of providing health care to individuals exposed to the products. It contained a provision giving the law the retroactive effect necessary to give all of its provisions full effect, including the abrogation of any limitation periods for an action for damages alleged to have been caused or contributed to by a tobacco related wrong. One of the arguments of the tobacco companies was that the legislation offended the rule of law because of its retroactive effect. 73 Justice Major, writing for the Court, discussed the principles of the rule of law at paragraphs 57 to 60: 57 The rule of law is “a fundamental postulate of our constitutional structure” (Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142) that 204 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

lies “at the root of our system of government” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70). It is expressly acknowledged by the preamble to the Constitution Act, 1982, and implicitly recognized in the preamble to the Constitution Act, 1867: see Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 750. 58 This Court has described the rule of law as embracing three principles. The first recognizes that “the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power”: Reference re Manitoba Language Rights, at p. 748. The second “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”: Reference re Manitoba Language Rights, at p. 749. The third requires that “the relationship between the state and the individual ... be regulated by law”: Reference re Secession of Quebec, at para. 71. 59 So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation. The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state officials’ actions be legally founded. See R. Elliot, “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001), 80 Can. Bar Rev. 67, at pp. 114-15. 60 This does not mean that the rule of law as described by this Court has no normative force. As McLachlin C.J. stated in [Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, 2002 SCC 57], at para. 54, “unwritten constitutional principles”, including the rule of law, “are capable of limiting government actions”. See also Reference re Secession of Quebec, at para. 54. But the government action constrained by the rule of law as understood in Reference re Manitoba Language Rights and Reference re Secession of Quebec is, by definition, usually that of the executive and judicial branches. Ac- tions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed). 74 Justice Major went on to acknowledge the existence of a debate about whether the rule of law might embrace additional principles, and the ex- Tabingo v. Canada (MCI) K. Sharlow J.A. 205

tent to which those additional principles might apply to invalidate legislation based on its content. However, he did not accept any extension of the established principles. He also rejected the argument of the tobacco companies that the rule of law requires that legislation be prospective. In my view, this Court cannot, in the face of Imperial Tobacco, accept the argument of the appellants that subsection 87.4(1) offends the rule of law because it is retrospective.

E. Retrospective effect and vested rights 75 The appellants argue, based primarily on Dikranian c. Québec (Procureur général), 2005 SCC 73, [2005] 3 S.C.R. 530 (S.C.C.), that when they submitted their permanent resident visa applications, they had a vested right to have their applications processed to completion and to have them considered under the statutory provisions and regulations in effect when the applications were submitted. There is no merit to this argument. 76 The appellants had the right to apply for permanent resident visas and, when they submitted their applications, they had the right to have their applications considered in accordance with the IRPA. However, they did not have the right to the continuance of any provisions of the IRPA that affected their applications. Nor did they have the right to have their applications considered under the provisions of the IRPA as in effect when they submitted their applications. I reach that conclusion for the following reasons. 77 Parliament has the authority to enact laws governing immigration and to amend those laws from time to time. Parliament also has the authority to enact laws that have retrospective effect, although it is presumed that retrospective effect is not intended unless the law is so clear that it cannot reasonably be interpreted otherwise: Gustavson Drilling (1964) Ltd. v. Minister of National Revenue (1975), [1977] 1 S.C.R. 271 (S.C.C.) at pages 279 to 283, Imperial Tobacco Canada Ltd., cited above, at paragraphs 69 to 72. 78 I have already concluded, for reasons stated earlier in these reasons, that subsection 87.4(1) of the IRPA is sufficiently clear to terminate the appellants’ applications retrospectively. That distinguishes this case from Dikranian, in which the Supreme Court of Canada held that certain amendments to provincial legislation were not clear enough to abrogate contractual rights of students who borrowed money from financial institutions prior to the amendments. 206 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

79 The appellants rely on Choi v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 763 (Fed. C.A.). In my view, this case does not assist the applicants because it does not deal with a legislative change that was expressed to have retrospective effect. Rather, it deals with a remedy for an administrative error that caused prejudice to an applicant because of a change to the Regulations. Canadian authorities had informed Mr. Choi that he would qualify to apply for immigration to Canada (meaning that he would have enough “points” for his occupation under the regime then in effect). He was given a pre-application questionnaire but he was not told that he could submit his formal application immediately. Nor was he told that changes to the eligibility provisions for applicants in his occupation were imminent. He returned the completed questionnaire a few days later. The eligibility changes were made after he returned the questionnaire but before he submitted his formal application. The Court held the Canadian authorities, having undertaken to provide information to Mr. Choi, were obliged to provide correct information and they had failed to do so. The Court ordered the situation to be remedied by treating Mr. Choi as though he had submitted his application on the date on which he submitted his completed pre-application questionnaire, which preceded the eligibility changes. 80 The appellants also rely on McDoom v. Canada (Minister of Manpower & Immigration) (1977), [1978] 1 F.C. 323 (Fed. T.D.). That case deals with changes to the Regulations that were made after an applicant submitted an application. The Court held that the applicant was entitled to be assessed under the Regulations as they read at the date of application. However, this case is of no assistance to the appellants because there is no suggestion that the changes to the Regulations in issue were intended or stated to have retrospective effect. Indeed, it appears that the Governor in Council has only recently been authorized to enact Regula- tions that may affect pending applications for permanent resident visas (see subsection 5(1.1) of the IRPA, added by section 702 of the Jobs, Growth and Long-term Prosperity Act, effective June 29, 2012). 81 Finally, the appellants cite Dragan v. Canada (Minister of Citizenship & Immigration), [2003] 4 F.C. 189 (Fed. T.D.). That case is of no assistance to the appellants either. In that case, legislative amendments affecting the applicants were found to have retrospective effect unless the applications were processed by March 31, 2003. On February 21, 2003, the Court ordered the Minister to process the applications by March 31, 2003. Tabingo v. Canada (MCI) K. Sharlow J.A. 207

F. Subsection 15(1) of the Charter 82 The appellants rely on subsection 15(1) of the Charter, which reads as follows: 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 15. (1) La loi ne fait acception de personne et s’applique egalement´ a` tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des dis- criminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques. 83 The appellants argue that the manner in which subsection 87.4(1) of the IRPA was implemented breaches their equality rights under subsection 15(1) of the Charter because of the differential allocation of resources to different visa posts, combined with changes to the processing rules that required post-2008 applications to be given priority. They argue that the visa posts to which applicants from China, the Philippines and Pakistan were required to submit their permanent resident visa applications were provided with proportionally less resources than visa posts that would process applications from other countries. They say that the result is discrimination on the basis of “national origin in consideration of country of residence”, which they argue is a single analogous ground. 84 The burden of establishing discrimination contrary to subsection 15(1) of the Charter lies on the appellants. Among other things, the appellants were required to adduce evidence proving on the balance of probabilities that the allocation of resources was discriminatory. To discharge that burden, the appellants relied primarily on statistics they obtained from the Minister about the different rates of completed applications at various visa posts, and then invited Justice Rennie to draw inferences and conclusions from the statistics. The Minister submitted affidavit evidence explaining the variation by reference to the workload at various visa posts and other factors. 85 Although the thrust of the appellants’ claim is that there has been a discriminatory allocation of resources, the Minister did not adduce detailed evidence on the point. The appellants could have converted all or part of their applications to actions in order to get discovery and try this 208 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

point, or they could have subpoenaed witnesses: see Federal Courts Act, R.S.C. 1985, c. F-7, subsection 18.4(2); Federal Courts Rules, SOR/98- 106, Rules 41 and 316. But they did not do so. 86 Neither party submitted expert evidence that analyzed the statistics in any way. There was no attempt on the part of the appellants to adduce expert evidence to refute the Minister’s position that the factors cited by the Minister are a sufficient explanation of the different rates of processing at various visa posts. 87 Justice Rennie held that country of residence is not an analogous ground, but he considered the claim of discrimination on the basis of national origin and concluded, essentially for two reasons, that the evidence does not support the appellants’ claim. First, Justice Rennie found that the appellants, and the thousands of people they represent, share no commonality of race, national origin or ethnicity. Second, he found in the Minister’s evidence cogent explanations for the different processing rates that had nothing to do with the personal characteristics of the appellants or those they represent. Based on his appreciation of the evidence, Jus- tice Rennie was unwilling to draw inferences favourable to the appellants’ case. I have been able to discern from the record no palpable and overriding error in this conclusion. 88 It is true that the statistics indicate that there were different rates of processing in different visa posts. For example, approximately 90% of pre-2008 federal skilled worker applications were processed in the visa posts serving Europe and the Americas, while approximately 40% were processed in the visa posts serving Africa, the Middle East, Asia and the Pacific. In the end, over 90% of the terminated files originated in Africa, the Middle East, Asia and the Pacific. 89 However, those different rates of processing had numerous causes. Each visa post had a varied workload that included not only federal skilled worker applications but also visas for visitors, international students and foreign workers that were given priority because they were time sensitive. Some visa posts were required to give priority to refugee claimants or, in the case of Manila, applicants under the Live-In Caregiver Program or the Provincial Nominee Program. The Buffalo visa post gave priority to applicants already lawfully in Canada. 90 The government’s ability to resource certain visa offices was also in- fluenced by external factors such as natural disasters, political instability and regional conflicts. There were significant variations in staff turnover and limitations based on physical premises and security concerns. Some Tabingo v. Canada (MCI) K. Sharlow J.A. 209

visa posts were affected by poor local infrastructure that slowed down mail service and other means of communication, or rendered them unreliable. Local conditions also affected the time required to verify documentation relating to birth, education and training credentials. 91 Justice Rennie found particularly compelling the evidence that, because of the internal transfer of applications, the visa posts in Buffalo, London and Paris processed a significant number of applicants from In- dia, China and Pakistan. For example, 69% of the applications processed in Buffalo, which had one of the highest clearance rates, were applications from Asia, the Middle East and Africa. 92 Given the evidentiary limitations of the record, I do not consider it necessary to express any opinion on the legal issues considered by Jus- tice Rennie in the context of the appellants’ claim under subsection 15(1) of the Charter, including the issue as to whether the appellants, as foreign nationals outside Canada who have applied for permanent resident visas, have any rights under subsection 15(1) of the Charter. 93 I have not ignored the argument of the appellants that Justice Rennie was wrong when he said that the appellants raised no precise or particular deficiency that called into question the accuracy or reliability of the Minister’s evidence. They say they raised the concern that the Minister had a “monopoly” on the evidence, that the statistical data was incomplete and ambiguous, and that the Minister failed to produce any witnesses that were able to address questions about visa office operations, from which Justice Rennie should have drawn an inference adverse to the Minister. 94 I find this argument unpersuasive. The onus of proving a breach of subsection 15(1) of the Charter was on the appellants, not the Minister. The appellants apparently believed that they could prove their case with the statistical evidence provided by the Minister. In the end, Justice Ren- nie found that that evidence did not discharge the appellant’s burden of proof, a finding he made without palpable and overriding error. As mentioned above, the appellants chose not to adduce rebuttal evidence and did not pursue steps to obtain more and better evidence. Their affirmative case in support of a finding of discrimination fell short of the mark, ren- dering irrelevant any deficiencies in the Minister’s evidence. 210 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

G. Section 7 of the Charter 95 The appellants rely on section 7 of the Charter, which reads as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 7. Chacun a droit à la vie, à la liberté et a` la sécurité de sa personne; il ne peut etreˆ porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale. 96 This provision is engaged only when a person’s life, liberty or personal security is in jeopardy because of a law or its application. Justice Rennie concluded that the appellants’ section 7 claim fails at this threshold question. I agree, substantially for the reasons he gave. 97 The appellants are foreign nationals who reside outside Canada. Their only connection to Canada is that they have applied under a Canadian statute for the right to become permanent residents. They have no legal right to that status, and no right to enter or remain in Canada unless they attain that status. They had the right to seek permanent resident status under the IRPA, and when they did so they had the right to have their applications considered under the IRPA. However, neither of those rights is a right to life, liberty or security of the person. When their applications were terminated by subsection 87.4(1), they were not deprived of any right that is protected by section 7 of the Charter. 98 The appellants argue that if their applications had been accepted they would have acquired the right to enter and remain in Canada, which means necessarily that they would also have acquired all Charter rights except those given only to citizens of Canada. They argue that, because of the importance of their objective of becoming permanent residents of Canada, the loss of their right to have their permanent resident visa applications considered is such a blow to their psychological and physical integrity that it should be construed as the loss of a right that is within the scope of section 7 of the Charter. 99 I do not accept this argument. I have no doubt that the termination of the appellants’ permanent resident visa applications caused them financial loss, but financial loss alone does not implicate the rights to life, liberty and security of the person. The termination of their applications could have been profoundly disappointing to the appellants and perhaps for some psychologically damaging, but the evidence does not establish the high threshold of psychological harm necessary to establish a depri- Tabingo v. Canada (MCI) K. Sharlow J.A. 211

vation of the right to security of the person: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 (S.C.C.).

IV. Conclusion 100 I would answer the certified questions as follows: (a) Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus? Answer: Subsection 87.4(1) terminated the applications automatically on June 29, 2012. After that date, the Minister had no legal obligation to continue to process the applications. The appellants are not entitled to mandamus. (b) Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA? Answer: No. (c) Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Charter? Answer: No. 101 I would dismiss all of the appeals.

Eleanor R. Dawson J.A.:

I agree,

David Stratas J.A.:

I agree, Appeal dismissed.

Appendix A Operational Bulletin 442 - June 29, 2012 (excerpt) Cessation of Processing and Return of Fees for Certain Federal Skilled Worker Applications Summary Processing of certain applications made under the Federal Skilled Worker (FSW) program prior to February 27, 2008, is to cease effective June 29, 2012, and fees paid to Citizenship and Immigration Canada 212 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

(CIC) in respect of the affected applications are to be returned to the person who paid them as required by law. Issue This Operational Bulletin (OB) provides guidance on steps to be taken to terminate certain FSW applications made prior to February 27, 2008, as per amendments to the Immigration and Refugee Protection Act (IRPA) that were enacted as part of the Jobs, Growth and Long-term Prosperity Act and come into force on June 29, 2012. Background The Jobs, Growth and Long-term Prosperity Act eliminates the majority of the backlog in the FSW program by terminating applications and returning fees paid to CIC by certain FSW applicants who applied prior to February 27, 2008. The requirement to terminate certain FSW applications takes legal effect upon the coming into force of relevant provisions of the Jobs, Growth and Long-term Prosperity Act on June 29, 2012. An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008, is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. Processing Instructions Visa offices are to cease processing of FSW applications made prior to February 27, 2008, in accordance with the following instructions: If the officer ... and Then ... has not established • the application is terminated; whether the appli- and cant meets the selection criteria prior to March 29, 2012 • fees paid to CIC are to be returned to the person who paid them Tabingo v. Canada (MCI) K. Sharlow J.A. 213

If the officer ... and Then ... has established the applica- • processing of the application whether the appli- tion has not continues to a final decision; cant meets the se- been final- and lection criteria ized before prior to March 29, June 29, 2012 2012... • fees paid to CIC will not be returned to the person who paid them. established whether the applica- • the application is terminated; the applicant meets tion has not and the selection crite- been final- ria on or after ized before March 29, 2012 June 29, 2012... • fees paid to CIC are to be returned to the person who paid them. established whether the applica- • the final decision on the appli- the applicant meets tion has cation stands; the selection crite- been final- ria on or after ized before March 29, 2012 June 29, 2012... • processing continues to visa issuance or refusal; and • fees paid to CIC will not be returned to the person who paid them. Note: No further action is required at this time on the part of visa offices for those applications that are terminated in accordance with the above instructions. Establishing that a decision has been made as to whether the applicant meets selection criteria 214 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

A decision as to whether the applicant meets selection criteria was made if, prior to March 29, 2012, at least one of the following actions was taken: • a selection decision was entered into the processing system (“SELDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or “Eligibility — Passed” /“Eligibility — Failed” in the Global Case Management System (GCMS)); • the file notes clearly state that the selection criteria have or have not been met, but a selection decision has not yet been entered into the processing system; • a negative decision had previously been made, but the file had been re-opened for a redetermination further to an order by a Su- perior Court (which includes the Federal Court) or a settlement agreement entered into by way of a Court order made prior to March 29, 2012. A decision as to whether the applicant met selection criteria was not made prior to March 29, 2012, if any of the following situations applied as of that date: • a preliminary review of the documentation has taken place, but a selection decision has not been entered into the processing system or documented as described above; • additional documentation had been requested from the applicant but has not been received, or a selection interview is pending; • additional documents were received that could have served to make a selection decision, but the selection decision has not been entered in the processing system or documented as described above. For instance, receipt of an Arranged Employment Opinion (AEO) or a response to an officer’s request for additional information prior to March 29, 2012. Establishing that a final decision has been made In establishing that final decision has been made on an application, at least one of the following actions must have been taken: • a final decision was entered into the processing system (“FINDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or “Final — Approved” / “Final — Refused” in the Global Case Management System (GCMS)); Tabingo v. Canada (MCI) K. Sharlow J.A. 215

• the file notes clearly state that a final decision has been rendered, but the decision has not yet been entered into the processing system. 216 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

[Indexed as: McAteer v. Canada (Attorney General)] Michael McAteer, Simone E.A. Topey and Dror Bar-Natan, Applicants (Appellants/Respondents by way of cross-appeal) and The Attorney General of Canada, Respondent (Respondent/Appellant by way of cross-appeal) Ontario Court of Appeal Docket: CA C57775 2014 ONCA 578 K.M. Weiler, P. Lauwers, G. Pardu JJ.A. Heard: April 8, 2014 Judgment: August 13, 2014 Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of expression — Nature and scope of expression –––– Applicants were permanent residents of Canada who wished to become Canadian citizens — Applicants were citizens of Ireland, Jamaica and Israel respectively — Under Citizenship Act, person over 14 years old must take oath of citizenship in order to become citizen — Applicants objected to oath to Queen — Applicants argued that oath violated freedom of expression, and freedom of religion and equality under Canadian Charter of Rights and Freedoms, and that oath did not constitute reasonable limit on those rights under s. 1 of Charter — Applicants argued that requirement to swear an oath with which they did not agree curtailed their expression — Applicants brought unsuccessful application under Charter — Court found that guarantee of freedom of expression in s. 2(b) of Charter was prima facie infringed by statutory requirement that applicants recite oath to Queen — However, court also found that Queen had to be understood in context of equality-protecting Canadian institution rather than aristocratic English overlord — Applicants characterized citizenship oath in terms of traditional characterization and interpreted oath in literalist manner — Court held that applicants’ beliefs about Queen reflected fundamental misapprehension — Court concluded that oath to Queen was form of compelled speech that infringed applicants’ freedom of expression, but was reasonable limit on right of expression and was saved by s. 1 of Charter — Applicants appealed and Crown cross-appealed — Appeal dismissed and cross-appeal allowed — Appli- cants’ rights were not violated — And even if rights were violated, s. 1 analysis was conducted properly and oath would be saved under s. 1.. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of conscience and religion. McAteer v. Canada (Attorney General) 217

Cases considered by K.M. Weiler J.A.: Bell ExpressVu Ltd. Partnership v. Rex (2002), 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 166 B.C.A.C. 1, 271 W.A.C. 1, 18 C.P.R. (4th) 289, 100 B.C.L.R. (3d) 1, 2002 SCC 42, 2002 CarswellBC 851, 2002 Car- swellBC 852, 93 C.R.R. (2d) 189, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, REJB 2002-30904 (S.C.C.) — referred to Canada (House of Commons) v. Vaid (2005), 2005 SCC 30, 2005 CarswellNat 1272, 2005 CarswellNat 1273, 333 N.R. 314, 41 C.C.E.L. (3d) 1, 252 D.L.R. (4th) 529, 28 Admin. L.R. (4th) 1, [2005] 1 S.C.R. 667, 2005 C.L.L.C. 230- 016, 135 C.R.R. (2d) 189, [2005] S.C.J. No. 28, EYB 2005-90618 (S.C.C.) — considered Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CarswellOnt 1168, 34 C.R. (4th) 269, 20 O.R. (3d) 816 (note), [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12, 175 N.R. 1, 94 C.C.C. (3d) 289, 76 O.A.C. 81, 25 C.R.R. (2d) 1, 1994 CarswellOnt 112, EYB 1994-67668, [1994] S.C.J. No. 104 (S.C.C.) — referred to Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580 (1986), [1987] D.L.Q. 69 (note), 1986 CarswellBC 411, 38 C.C.L.T. 184, 71 N.R. 83, (sub nom. R.W.D.S.U. v. Dolphin Delivery Ltd.) [1986] 2 S.C.R. 573, (sub nom. R.W.D.S.U. v. Dolphin Delivery Ltd.) 9 B.C.L.R. (2d) 273, (sub nom. R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.) 87 C.L.L.C. 14,002, (sub nom. R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.) 33 D.L.R. (4th) 174, (sub nom. R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.) 25 C.R.R. 321, (sub nom. R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.) [1987] 1 W.W.R. 577, 1986 CarswellBC 764, [1986] S.C.J. No. 75 (S.C.C.) — referred to Harper v. Canada (Attorney General) (2004), 2004 CarswellAlta 646, 2004 CarswellAlta 647, 2004 SCC 33, 27 Alta. L.R. (4th) 1, [2004] 8 W.W.R. 1, 348 A.R. 201, 321 W.A.C. 201, [2004] 1 S.C.R. 827, 320 N.R. 49, 239 D.L.R. (4th) 193, 119 C.R.R. (2d) 84, [2004] S.C.J. No. 28, REJB 2004- 61915 (S.C.C.) — considered Hutterian Brethren of Wilson Colony v. Alberta (2009), (sub nom. Alberta v. Hutterian Brethren of Wilson Colony) 194 C.R.R. (2d) 12, 2009 Carswell- Alta 1094, 2009 CarswellAlta 1095, 2009 SCC 37, 310 D.L.R. (4th) 193, (sub nom. Alberta v. Hutterian Brethren of Wilson County) [2009] 2 S.C.R. 567, 9 Alta. L.R. (5th) 1, 81 M.V.R. (5th) 1, 390 N.R. 202, [2009] 9 W.W.R. 189, 462 W.A.C. 1, 460 A.R. 1, [2009] S.C.J. No. 37 (S.C.C.) — referred to Irwin Toy Ltd. c. Québec (Procureur général) (1989), 94 N.R. 167, (sub nom. Irwin Toy Ltd. v. Quebec (Attorney General)) [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577, 24 Q.A.C. 2, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 1989 CarswellQue 115F, 1989 CarswellQue 115, EYB 1989-67798, [1989] S.C.J. No. 36 (S.C.C.) — followed 218 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Lavigne v. O.P.S.E.U. (1991), 91 C.L.L.C. 14,029, 48 O.A.C. 241, 4 C.R.R. (2d) 193, 126 N.R. 161, 81 D.L.R. (4th) 545, [1991] 2 S.C.R. 211, 1991 Cars- wellOnt 1038F, 1991 CarswellOnt 1038, 3 O.R. (3d) 511 (note), [1991] S.C.J. No. 52, EYB 1991-67641 (S.C.C.) — considered Lavoie v. Canada (1999), (sub nom. Lavoie v. Canada (Public Service Commis- sion)) 64 C.R.R. (2d) 189, 163 F.T.R. 251 (note), [2000] 1 F.C. 3, 242 N.R. 278, 174 D.L.R. (4th) 588, 1999 CarswellNat 962, 1999 CarswellNat 3054, [1999] F.C.J. No. 754 (Fed. C.A.) — considered Lavoie v. Canada (2002), (sub nom. Bailey v. Public Service Commission) 2002 C.L.L.C. 210-020, 15 C.C.E.L. (3d) 159, 92 C.R.R. (2d) 1, 22 Imm. L.R. (3d) 182, [2002] 1 S.C.R. 769, 2002 SCC 23, 2002 CarswellNat 406, 2002 CarswellNat 407, 210 D.L.R. (4th) 193, 284 N.R. 1, [2002] S.C.J. No. 24, REJB 2002-28412 (S.C.C.) — referred to Marcovitz v. Bruker (2007), 52 C.C.L.T. (3d) 1, (sub nom. Bruker v. Marcovitz) 166 C.R.R. (2d) 36, (sub nom. Bruker v. Marcovitz) 288 D.L.R. (4th) 257, (sub nom. Bruker v. Marcovitz) 370 N.R. 1, (sub nom. Bruker v. Marcovitz) [2007] 3 S.C.R. 607, 2007 SCC 54, 2007 CarswellQue 11548, 2007 Car- swellQue 11549, 46 R.F.L. (6th) 1, EYB 2007-127332, [2007] S.C.J. No. 54 (S.C.C.) — considered NAV Canada c. Wilmington Trust Co. (2006), 2006 CarswellQue 4890, 2006 CarswellQue 4891, 2006 SCC 24, (sub nom. Greater Toronto Airports Authority v. International Lease Finance Corp.) 80 O.R. (3d) 558 (note), (sub nom. Canada 3000 Inc., (Bankrupt), Re) 349 N.R. 1, (sub nom. Canada 3000 Inc., Re) [2006] 1 S.C.R. 865, 10 P.P.S.A.C. (3d) 66, 20 C.B.R. (5th) 1, (sub nom. Canada 3000 Inc. (Bankrupt), Re) 212 O.A.C. 338, (sub nom. Canada 3000 Inc., Re) 269 D.L.R. (4th) 79, (sub nom. Canada 3000 Inc., Re) [2006] S.C.J. No. 24 (S.C.C.) — referred to O’Donohue v. Canada (2003), 2003 CarswellOnt 2573, 109 C.R.R. (2d) 1, [2003] O.T.C. 623, [2003] O.J. No. 2764 (Ont. S.C.J.) — distinguished O’Donohue v. Canada (2005), 2005 CarswellOnt 951, [2005] O.J. No. 965 (Ont. C.A.) — referred to R. v. Khawaja (2012), 97 C.R. (6th) 223, 356 D.L.R. (4th) 1, [2012] 3 S.C.R. 555, 118 O.R. (3d) 797 (note), 2012 CarswellOnt 15515, 2012 CarswellOnt 15516, 2012 SCC 69, 290 C.C.C. (3d) 361, 437 N.R. 42, 301 O.A.C. 200, [2012] S.C.J. No. 69 (S.C.C.) — considered R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 1986 Cars- wellOnt 95, 1986 CarswellOnt 1001, 53 O.R. (2d) 719 (note), [1986] S.C.J. No. 7, EYB 1986-67556 (S.C.C.) — referred to R. v. Secretary of State for Foreign & Commonwealth Affairs (1982), [1982] 2 All E.R. 118, [1981] 4 C.N.L.R. 86, 1 C.R.R. 254, 1982 CarswellFor 2, [1982] Q.B. 892 (Eng. C.A.) — referred to McAteer v. Canada (Attorney General) 219

R. v. Ulybel Enterprises Ltd. (2001), 2001 SCC 56, 2001 CarswellNfld 239, 2001 CarswellNfld 240, 206 Nfld. & P.E.I.R. 304, 618 A.P.R. 304, 275 N.R. 201, 157 C.C.C. (3d) 353, 203 D.L.R. (4th) 513, 45 C.R. (5th) 1, [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, REJB 2001-25833 (S.C.C.) — referred to Reference re Same-Sex Marriage (2004), 246 D.L.R. (4th) 193, [2004] 3 S.C.R. 698, 2004 CarswellNat 4422, 2004 CarswellNat 4423, 2004 SCC 79, 12 R.F.L. (6th) 153, 328 N.R. 1, 125 C.R.R. (2d) 122, [2003] S.C.C.A. No. 325, REJB 2004-81254, [2004] S.C.J. No. 75 (S.C.C.) — referred to Reference re Secession of Quebec (1998), 228 N.R. 203, 1998 CarswellNat 1300, 161 D.L.R. (4th) 385, 1998 CarswellNat 1299, 55 C.R.R. (2d) 1, [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61 (S.C.C.) — referred to Reference re Supreme Court Act, R.S.C. 1985 (Canada) (2014), (sub nom. Reference re Supreme Court Act, ss. 5 and 6) [2014] 1 S.C.R. 433, 2014 SCC 21, 2014 CSC 21, 2014 CarswellNat 640, 2014 CarswellNat 641, 368 D.L.R. (4th) 577, 455 N.R. 202 (S.C.C.) — considered Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, [1998] S.C.J. No. 2 (S.C.C.) — referred to RJR-Macdonald Inc. c. Canada (Procureur général) (1995), (sub nom. RJR- MacDonald Inc. v. Canada (Attorney General)) 127 D.L.R. (4th) 1, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) [1995] 3 S.C.R. 199, 1995 CarswellQue 119, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 100 C.C.C. (3d) 449, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 62 C.P.R. (3d) 417, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 31 C.R.R. (2d) 189, (sub nom. RJR- MacDonald Inc. c. Canada (Procureur général)) 187 N.R. 1, 1995 Car- swellQue 119F, EYB 1995-67815, [1995] S.C.J. No. 68 (S.C.C.) — considered Roach v. Canada (Attorney General) (2007), 2007 CarswellOnt 6476, (sub nom. Roach v. Canada (Minister of State for Multiculturalism & Citizenship)) 230 O.A.C. 83, (sub nom. Roach v. Canada (Minister of State, Multiculturalism & Citizenship)) 164 C.R.R. (2d) 102, [2007] O.J. No. 3897 (Ont. Div. Ct.) — referred to Roach v. Canada (Attorney General) (2008), 2008 ONCA 124, 2008 Carswell- Ont 800, [2008] O.J. No. 584 (Ont. C.A.) — referred to Roach v. Canada (Attorney General) (2009), 2009 CarswellOnt 922, 74 C.P.C. (6th) 22, [2009] O.J. No. 737 (Ont. S.C.J.) — considered Roach v. Canada (Minister of State for Multiculturalism & Culture) (1992), 16 Imm. L.R. (2d) 206, [1992] 2 F.C. 173, 53 F.T.R. 241, 88 D.L.R. (4th) 225, 1992 CarswellNat 26, 1992 CarswellNat 577 (Fed. T.D.) — considered 220 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Roach v. Canada (Minister of State for Multiculturalism & Culture) (1994), (sub nom. Roach v. Canada (Minister of State for Multiculturalism & Citizen- ship)) 164 N.R. 370, (sub nom. Roach v. Canada (Minister of State for Multiculturalism & Citizenship)) 72 F.T.R. 304 (note), 1994 CarswellNat 1463, [1994] 2 F.C. 406, 1994 CarswellNat 93, 23 Imm. L.R. (2d) 1, 113 D.L.R. (4th) 67 (Fed. C.A.) — referred to Roach v. Canada (Minister of State for Multiculturalism & Culture) (1994), 113 D.L.R. (4th) 67n (Fed. C.A.) — referred to Slaight Communications Inc. v. Davidson (1989), 26 C.C.E.L. 85, 1989 Car- swellNat 193, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416, (sub nom. Davidson v. Slaight Communications Inc.) 93 N.R. 183, 89 C.L.L.C. 14,031, 40 C.R.R. 100, 1989 CarswellNat 695, EYB 1989-67228, [1989] S.C.J. No. 45 (S.C.C.) — referred to Thomson Newspapers Co. v. Canada (Attorney General) (1998), 159 D.L.R. (4th) 385, 1998 CarswellOnt 1981, 1998 CarswellOnt 1982, 51 C.R.R. (2d) 189, 226 N.R. 1, 38 O.R. (3d) 735 (headnote only), 109 O.A.C. 201, [1998] 1 S.C.R. 877, 5 B.H.R.C. 567, [1998] S.C.J. No. 44 (S.C.C.) — referred to Xeni Gwet’in First Nations v. British Columbia (2014), [2014] 7 W.W.R. 633, 43 R.P.R. (5th) 1, 58 B.C.L.R. (5th) 1, 2014 SCC 44, 2014 CSC 44, 2014 CarswellBC 1814, 2014 CarswellBC 1815, [2014] S.C.J. No. 44 (S.C.C.) — referred to Statutes considered: Act of Settlement, 1700 (12 & 13 Will. 3), c. 2 Generally — referred to Aliens Act, 1847 (10 & 11 Vict.), c. 83 Generally — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 1 — considered s. 2(a) — considered s. 2(b) — considered s. 2(c) — considered s. 2(d) — considered s. 12 — considered s. 15 — considered s. 15(1) — considered s. 27 — considered Citizenship Act, R.S.C. 1985, c. C-29 s. 3(1)(c) — considered s. 5(1)(e) — referred to s. 12(3) — considered s. 24 — considered s. 32(2) — referred to McAteer v. Canada (Attorney General) 221

Sched. — referred to Class Proceedings Act, 1992, S.O. 1992, c. 6 Generally — referred to Colonial Laws Validity Act, 1865 (28 & 29 Vict.), c. 63 Generally — referred to Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 Generally — referred to s. 9 — considered s. 17 — considered s. 91 — considered s. 91 ¶ 25 — considered s. 92 — considered s. 128 — considered s. 129 — considered Sched. V — referred to Constitution Act, 1974, S.C. 1974-75-76, c. 13, Pt. I, reprinted R.S.C. 1985, App. II, No. 40 Generally — referred to Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44 Generally — referred to Constitutional Act, 1791 (U.K.), 31 Geo. 3, c. 31, reprinted R.S.C. 1985, App. II, No. 3 Generally — referred to Quebec Act, 1774 (U.K.), 14 Geo. 3, c. 83, reprinted R.S.C. 1985, App. II, No. 2 Generally — referred to Statute of Westminster, 1931 (22 & 23 Geo. 5), c. 4 Generally — referred to Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 14.05(3)(g.1) [en. O. Reg. 396/91] — referred to Regulations considered: Citizenship Act, R.S.C. 1985, c. C-29 Citizenship Regulations, 1993, SOR/93-246 s. 15(2)(b) — referred to s. 15(2)(c) — referred to

APPEAL by applicants and CROSS APPEAL by Crown from judgment reported at McAteer v. Canada (Attorney General) (2013), 2013 ONSC 5895, 2013 CarswellOnt 13165, 117 O.R. (3d) 353, 20 Imm. L.R. (4th) 121, 290 C.R.R. (2d) 332 (Ont. S.C.J.). 222 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Peter Rosenthal, Selwyn Pieters, Reni Chang, for Appellants Kristina Dragaitis, Sharon Guthrie, for Respondent

K.M. Weiler J.A.: I. Overview 1 Permanent residents of Canada over 14 years old who wish to become Canadian citizens are required to swear an oath or make an affirmation1: see Citizenship Act, R.S.C. 1985, c. C-29 (the “Act”) s. 3(1)(c). Subject to limited discretionary exceptions, s. 12(3) of the Act provides that a certificate of citizenship issued by the Minister of Citizenship and Immi- gration does not become effective until the oath is taken. Section 24 of the Act requires a person to take the oath in the form set out in the Schedule to the Act as follows: I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen. 2 The appellants object to the following portion of the oath: “I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Sec- ond, Queen of Canada, Her Heirs and Successors.” 3 The appellants assert that the requirement in the Act to swear or affirm allegiance to the Queen in order to become a Canadian citizen is a violation of their rights under ss. 2(a) (freedom of conscience and religion), 2(b) (freedom of expression), and 15(1) (equality) of the Charter of Rights and Freedoms. They submit that the government cannot justify any such violation as a reasonable limit in a free and democratic society under s. 1. If successful, they seek a declaration making the impugned portion of the citizenship oath optional. 4 The application judge dismissed the appellants’ application. He held that the requirement to swear an oath to the Queen did not violate their freedom of religion or equality rights and, although he found that there was a violation of the appellants’ right to freedom of expression, he held it was justified under s. 1 of the Charter. 5 The appellants appeal the dismissal of their application and the respondent, the Attorney General of Canada, cross-appeals the finding that the oath violates the appellants’ right to freedom of expression.

1In this appeal I will refer simply to both options as the oath. McAteer v. Canada (Attorney General) K.M. Weiler J.A. 223

6 For the reasons that follow I would dismiss the appeal and allow the cross-appeal. The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Su- preme Court of Canada, leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under The Constitu- tion Act, 1867. In that oath, the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning. 7 The appellants’ incorrect interpretation of the meaning of the oath cannot be used as the basis for a finding of unconstitutionality. The approach to analyzing claims under s. 2(b) was set out by the Supreme Court in Irwin Toy Ltd. c. Québec (Procureur général), [1989] 1 S.C.R. 927 (S.C.C.), and requires the court to determine: 1) whether what is in issue is expression; 2) whether the purpose is to compel expression; and 3) whether there is an effect on expression that warrants constitutional disapprobation. Applying this approach, there is no issue that the oath is expression. I hold that the purpose of the oath is not to compel expression but to obtain a commitment to our form of government from those wishing to become Canadian citizens. Although the oath has an effect on the appellants’ freedom of expression, constitutional disapprobation is not warranted. Thus, there is no violation of the appellants’ freedom of expression. In the alternative, if there is a violation or the appellants’ right to freedom of expression, it is justified under s. 1 of the Charter. There is no violation of the appellants’ right to freedom of religion and freedom of conscience because the oath is secular and is not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol. Nor is the oath a violation of the appellants’ equality rights when the correct approach to statutory interpretation is applied.

II. The Oath and History of the Proceedings 1. The appellants 8 Mr. Charles Roach, who initiated the present application and passed away in October 2012, was a committed republican who believed that to swear fealty to a hereditary monarch would violate his belief in the 224 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

equality of human beings and his opposition to racial hierarchies. The appellant Mr. Michael McAteer is a committed republican who deposes that “taking an oath of allegiance to a hereditary monarch who lives abroad would violate [his] conscience, be a betrayal of [his] republican heritage and impede [his] activities in support of ending the monarchy in Canada.” He further deposes that taking an oath to the Queen perpetuates a class system and is anachronistic, discriminatory and not in keeping with his beliefs of egalitarianism and democracy. Similarly, the appellant Mr. Dror Bar-Natan states that the oath would violate his conscience because it is a symbol of a class system. 9 The appellant Ms. Simone Topey is a Rastafarian who regards the Queen as the head of Babylon. She deposes that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposes that on account of the oath, she would feel bound to refrain from partici- pating in anti-monarchist movements. The evidence of Mr. Howard Gomberg, a former plaintiff in these proceedings, is that taking an oath to any human being is contrary to his conception of Judaism. 10 In these reasons, I will, for the most part, not refer to the individual appellants but refer to them as a group, “the appellants”.

2. Prior Roach decisions 11 This is not the first time that Mr. Roach has advanced a claim that the oath of citizenship violates his Charter rights. In Roach v. Canada (Minister of State for Multiculturalism & Culture), [1992] 2 F.C. 173 (Fed. T.D.), Joyal J. upheld the prothonotary’s decision striking out Mr. Roach’s claim that the oath of citizenship violated his right to freedom of religion, freedom of expression, and was contrary to his equality rights under s. 15 of the Charter — the very claims advanced here.2 12 Mr. Roach’s further appeal to the Federal Court of Appeal was dismissed by MacGuigan J.A. on behalf of himself and McDonald J.A., with Linden J.A. dissenting in part: [1994] 2 F.C. 406 (Fed. C.A.), leave to appeal to S.C.C. denied by a three-member panel of the F.C.A., (1994), 113 D.L.R. (4th) 67n (Fed. C.A.).

2Mr. Roach also argued that the oath requiring a pledge of allegiance to the Queen violated his rights under ss. 2(c) (freedom of peaceful assembly) and 2(d) (freedom of association). Additionally, he claimed that it was cruel and unusual punishment under s. 12 and that it violated the spirit of s. 27 of the Charter. These claims are not pursued in the application before us. McAteer v. Canada (Attorney General) K.M. Weiler J.A. 225

13 In his reasons, MacGuigan J.A. noted that the monarch as Head of State is recognized in s. 9 of the Constitution Act, 1867. However, because Canada is a constitutional monarchy, the Queen does not rule personally; rather, the Queen can be said to “reign” by constitutional convention, through the advice of ministers. He found that taking an oath to the Queen in no way infringed on freedom of expression or freedom of religion. He concluded, at pp. 415-16: Not only are the consequences [of swearing an oath of allegiance to the Queen] as a whole not contrary to the Constitution, but it would hardly be too much to say that they are the Constitution. They express a solemn intention to adhere to the symbolic keystone of the Canadian Constitution as it has been and is, thus pledging an acceptance of the whole of our Constitution and national life. The appellant can hardly be heard to complain that, in order to become a Canadian citizen, he has to express agreement with the fundamental structure of our country as it is. 14 Dissenting in part, Linden J.A. held that it was not plain and obvious that Mr. Roach could not succeed in his claims under ss. 2(b), 2(c), and 15(1) of the Charter. He therefore would have allowed the claim to proceed on these bases.

3. The history of the present application 15 The present application was initiated as an application under the Class Proceedings Act, 1992, S.O. 1992, c. 6., for a remedy under the Canadian Charter of Rights and Freedoms pursuant to rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. 16 The respondent moved to strike out or stay the application on three grounds: 1. There was no reasonable cause of action; 2. The proposed action was an abuse of process because the Federal Court of Canada had already disposed of the issue; and 3. In the alternative, the Federal Court of Canada was the more appropriate forum. 17 The motion judge, Belobaba J., dismissed the motion. First, having regard to the fact that the Crown did not press the point that the claim was completely unmeritorious during oral argument, and taking into consideration the dissent of Linden J.A. in the Federal Court of Appeal, he held that the claim disclosed a reasonable cause of action. Second, he rejected the argument that the application was an abuse of process partly 226 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

on the basis that under the Class Proceedings Act, there could be dozens or hundreds of class members, the evidence would be different, and, having regard to the more than fifteen years that had passed since the prior proceeding, the Charter arguments would be different or at least more refined. Third, although the application concerned a challenge to the Citi- zenship Act, he held the application did not raise issues within the particular expertise of the Federal Court of Canada but was a straightforward constitutional challenge to a provision of a federal law. 18 The respondent’s attempts to overturn the decision of Belobaba J. were unsuccessful. Leave to appeal to the Divisional Court was refused: (2007), 230 O.A.C. 83 (Ont. Div. Ct.). An appeal to this court was dismissed: 2008 ONCA 124, [2008] O.J. No. 584 (Ont. C.A.). 19 In 2009, Mr. Roach moved to certify the class proceeding: Roach v. Canada (Attorney General) (2009), 74 C.P.C. (6th) 22 (Ont. S.C.J.). Cul- lity J. refused the motion and directed that an individual proceeding for declaratory relief would be a preferable procedure for resolving the common issues. 20 The appellants then brought their Charter challenge in the present application, which came before Morgan J. The application judge concluded that although there was a violation of s. 2(b), it was saved under s. 1. He found that there was no violation of s. 2(a) or s. 15. In reaching these conclusions, the application judge carefully considered the evolution of the Queen’s role as Head of State and the history of the oath. I will refer to his reasons on each of the Charter issues in greater detail as part of my analysis of the issues on appeal.

III. The Issues and Standard of Review 21 The four issues raised by the parties on this appeal are: 1. Does the oath violate freedom of expression under s. 2(b)? 2. Does the oath violate freedom of conscience or religion under s. 2(a)? 3. Does the oath violate the right to equality under s. 15(1)? 4. If there are Charter violations, are they saved under s. 1? 22 The standard of review is correctness.

IV. Discussion of the Meaning of the Oath 23 Both before the application judge and on appeal, much of the argument focused on the meaning of the oath. As the meaning of the oath is McAteer v. Canada (Attorney General) K.M. Weiler J.A. 227

central to the proper analysis of the appellants’ Charter claims, I will consider this question before turning to the main issues raised by the appeal and cross-appeal.

1. The appellants’ argument as to the meaning of the oath 24 The appellants submit that the plain meaning of the words “Her Maj- esty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Suc- cessors” expresses allegiance to the Queen as an individual. They claim that the notion of personal fidelity to this foreign monarch is antiquated, undemocratic and elitist in that it perpetuates hereditary privilege and is contrary to their conception of equality. For similar reasons, they object to pledging allegiance to the Queen’s heirs and successors, even if those successors prove to be benevolent rulers or never become head of state at all. 25 They assert that the requirement that the Queen be Anglican makes the oath supportive of one religion to the exclusion of all others, and that they are constrained by their religious or conscientious beliefs from swearing an oath to any person or to a foreign monarch. They further submit that the oath is antithetical to minorities’ identities and rights and is a divisive message forced into the mouths of those wishing to become Canadians. The appellants also assert that the oath is political belief discrimination under s. 15 of the Charter and that it discriminates against them on account of their non-citizen status, place of national origin and religious beliefs. 26 The appellants have sworn affidavits attesting to their subjective interpretations of the oath. They assert that if they took the oath, they would feel constrained from advancing their goal of abolishing Canada’s constitutional monarchy in favour of a republic. 27 If the appellants’ interpretation of the meaning of the oath to the Queen is accepted, it will go a long way towards holding that their Char- ter rights have been violated. If, on the other hand, the court rejects the appellants’ interpretation, as did the application judge, the opposite conclusion is equally true.

2. A purposive approach to interpretation is required 28 The appellants take a “plain-meaning” approach to interpretation. At the same time, they fairly acknowledge that some courts have suggested that this is not the correct approach. The current state of the law recognizes that meaning flows at least partly from context and that a statute’s 228 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

purpose is an integral element of that context: see Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000), at p. 387. 29 The question as to how a statutory provision should be interpreted has been answered definitively by the Supreme Court of Canada. On numerous occasions the court has adopted the approach to statutory interpretation espoused by E.A. Dreidger as the only approach, namely: [T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 21; NAV Canada c. Wilmington Trust Co., 2006 SCC 24, [2006] 1 S.C.R. 865 (S.C.C.), at para. 36; Xeni Gwet’in First Nations v. British Colum- bia, 2014 SCC 44, [2014] S.C.J. No. 44 (S.C.C.), at para. 108. 30 Recently, when the Supreme Court of Canada adopted the “plain meaning” of the text in the Reference re Supreme Court Act, R.S.C. 1985 (Canada), 2014 SCC 21, [2014] S.C.J. No. 21 (S.C.C.), it did so because the majority’s opinion was that the underlying purpose of s. 6 was consistent with the plain meaning of the text. The majority held, at para. 48: Section 6 reflects the historical compromise that led to the creation of the Supreme Court. Just as the protection of minority language, religion and education rights were central considerations in the negotia- tions leading up to Confederation, the protection of Quebec through a minimum number of Quebec judges was central to the creation of this Court. A purposive interpretation of s. 6 must be informed by and not undermine that compromise. [Citations omitted.] 31 As this statement indicates, in determining the intention of Parlia- ment, the history that led to the creation of the provision informs a purposive approach to interpretation. Further, in determining parliamentary intent, courts are reluctant to accept interpretations that violate the no- tions of rationality, coherence, fairness or other legal norms: Ruth Sulli- van, Sullivan on the Construction of Statutes, 5th ed. (Markham: Lexis- Nexis, 2008). 32 A “plain-meaning” approach to interpretation is inappropriate because it fails to recognize the history and the context in which the oath exists in this country. As I will discuss, these factors point to a much different understanding of the oath than the one advanced by the appel- McAteer v. Canada (Attorney General) K.M. Weiler J.A. 229

lants and leads to the conclusion that their interpretation is inconsistent with the history, purpose and intention behind the oath.

a. Historical perspective on the oath to the Queen 33 The appellants argue that the Queen is a symbol of hereditary privilege that connotes British ethnic dominance in Canada and is antithetical to minorities’ rights. 34 The application judge observed that the appellants’ objections to the oath are borne out of their insistence on a “plain-meaning” interpretation that is divorced from Canada’s history and evolution as a nation. I agree. The history of the Crown and its role in Canada, outlined below, supports the application judge’s conclusion. 35 British rule was cemented on September 8, 1760, when Governor Vaudreuil surrendered New France to a British invasion force by the Ar- ticles of Capitulation. Until a definitive treaty was signed, New France was under military occupation and rule. The definitive treaty, the Treaty of Paris, was signed three years later in 1763 between England, France and Spain. 36 Steps towards democratization soon began. The Royal Proclamation of 1763 gave the colonies the power to summon a General Assembly and gave the representatives of the people the power to make laws for the public peace, welfare and good government of the colony. In the meantime, all persons inhabiting the colonies were governed by the laws of England. The laws of England at the time required persons not born in Great Britain to swear an oath of allegiance to the King that contained specific provisions rejecting the Catholic faith. The oath was required before these individuals could obtain the privileges of British subjects, such as the right to vote and to hold office. 37 An imperial statute, the Quebec Act, 1774, 14 Geo. III, c. 83, replaced the oath of allegiance with one that no longer made reference to the Prot- estant faith. Thus, the oath in the Quebec Act was a compromise that recognized the religious freedom of French Canadians. 38 A few decades later, the “loyalists” came to Canada out of a desire to remain loyal to the Crown after the American Revolution. However, their loyalty should not be confused with blind allegiance to authority. As the application judge noted, at para. 75, “the loyalists shared with their coun- terparts to the south the ethos of dissent against authority — albeit democratic rather than revolutionary dissent.” These loyalists brought with them the “important idea of lawful opposition,” that is, the concept that 230 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

one can remain loyal to the Crown while still expressing dissent: Con- stance MacRae-Buchanan, “American Influence on Canadian Constitu- tionalism”, in J. Ajzenstat, ed, Canadian Constitutionalism: 1791-1991 (Canadian Study of Parliament Group: 1991), at pp. 153-54. They brought with them to Canada the idea that factions, partisanship and dissent help strengthen the nation and that allegiance to the Queen does not preclude opposing views: MacRae-Buchanan, at p. 154. Shortly thereaf- ter, the Constitutional Act, 1791, 31 Geo. III, c. 31, divided Quebec into two provinces, Upper Canada and Lower Canada, which were separated by the present-day boundary between Ontario and Quebec. The Constitu- tional Act repealed portions of the Quebec Act dealing with the powers and composition of the council, and it made provision for an elected assembly. Other portions of the Quebec Act were not repealed. 39 Conflict between the elected assembly on the one hand and the Gov- ernor and the appointed council on the other led to rebellion in Upper and Lower Canada in 1837. After it had been put down, Lord Durham recommended the institution of responsible government. He also recommended the union of the two Canadas. These recommendations were implemented by the Canadas. These recommendations were implemented by the Union Act, 1840, 3 & 4 Vict, c. 35. The two provinces were known as the Province of Canada. 40 At that time, the Parliament of Westminster functioned as a Parlia- ment for the United Kingdom and as an Imperial Parliament, that is, as the legislative body for the overseas territories of the British Empire. However, the colonies were given the power to pass their own laws pertaining to naturalization, subject to the usual confirmation by the Crown: An Act for the Naturalization of Aliens, 1847, 10 & 11 Vict., c. 83. Stat- utes pertaining to the Province of Canada, Nova Scotia and New Bruns- wick all contained an oath of allegiance as a requirement for naturalization: Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (London: George Edward Eyre & William Spottiswoode for Her Majesty’s Stationary Office, 1869), at Appendix, pp. 10-12. 41 With Confederation the Constitution Act, 1867, was passed. The preamble to the Constitution Act, 1867, gave Canada: “a Constitution similar Principle to that of the United Kingdom.” McAteer v. Canada (Attorney General) K.M. Weiler J.A. 231

42 Some pertinent provisions of the structure of the government of Can- ada set out in the Constitution Act, 1867 are: 9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen. 17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons. 43 Each member of the Senate or House of Commons of Canada is required by s. 128 of the Constitution Act, 1867 to take the oath contained in Schedule 5 of that Act before taking his or her seat. The oath prescribed in Schedule 5 of the Constitution Act, 1867, which is clearly constitutional, is remarkably similar to the oath of allegiance to which the appellants object. The wording of that oath is as follows: I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. Note. The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto. 44 The power to legislate respecting “naturalization and aliens” was granted to the federal parliament in s. 91(25). The Dominion of Canada continued to have the power to repeal or alter naturalization legislation: Constitution Act, 1867, s. 129. However, pursuant to the Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63, that legislation could not be inconsistent with the laws of Great Britain. 45 The restriction on repealing or amending pre-Confederation imperial statutes was removed by the Statute of Westminster, 1931, 22 Geo. V, c. 4. It enabled Canada to pass laws that were previously precluded by the Colonial Laws Validity Act. Thus, the Statute of Westminster was a significant development for Canadian sovereignty, in that it permitted Can- ada to pass laws that were inconsistent with certain British laws for the first time. 46 Canadians are no longer British citizens: see Citizenship Act, s. 32(2). 47 The Constitution Act, 1982 completed the “Canadianization” of the Crown. As the Supreme Court has explained, “the proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution”: Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.), at para. 46. 232 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

48 The evolution of Canada from a British colony into an independent nation and democratic constitutional monarchy must inform the interpretation of the reference to the Queen in the citizenship oath. As Canada has evolved, the symbolic meaning of the Queen in the oath has evolved. The Federal Court of Appeal in Roach read the reference to the Queen as a reference not to the person but to the institution of state that she represents. MacGuigan J.A., for the majority, indicated at p. 416 that the oath, properly understood, required a citizenship applicant to simply “express agreement with the fundamental structure of our country as it is.” 49 The application judge noted, at para. 60, that “Her Majesty the Queen in Right of Canada (or Her Majesty the Queen in Right of Ontario or the other provinces), as a governing institution, has long been distinguished from Elizabeth R. and her predecessors as individual people.” 50 I agree with the application judge’s comments. Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen’s role in Canada today. During the heyday of the Empire, Brit- ish constitutional theory saw the Crown as indivisible. At that time, there was no need to distinguish between the sovereign’s role as an individual and as the head of the executive; nor was there any need in unitary Great Britain to differentiate between the roles that the Crown plays: see The Hon. Bora Laskin, The British Tradition In Canadian Law (London: Ste- vens & Sons, 1969), at pp. 117-119. 51 However, as Canada developed as an independent federalist state, the conception of the Queen (commonly referred to as the Crown)3 evolved. Unlike the unitary role of the Crown at the height of the British Empire, its role in Canada is divided into three distinct roles. First, the Queen of Canada plays a legislative role in assenting to refusing assent to, or re- serving bills of the provincial legislature or Parliament — a role that is performed through the Governor General and the Lieutenant Governors. Second, the Queen of Canada is the head of executive authority pursuant to sections 9 and 12 of the Constitution Act, 1867. Third, the Queen of Canada is the personification of the State, i.e., with respect to Crown prerogatives and privileges: Laskin, at pp. 119-20. “The law and learning of Crown privileges and immunities came to the colonies as received or

3In this judgment the Crown and the sovereign are used as synonyms, although, in David E. Smith, The Invisible Crown: The First Principle of Canadian Gov- ernment, (Toronto: University of Toronto Press, 1995, 2013), the author argues there is a growing separation between the Crown and the monarchy. McAteer v. Canada (Attorney General) K.M. Weiler J.A. 233

imposed English law, and through section 129 of the British North America Act [which continues the laws in force in Canada, Nova Scotia or New Brunswick at the date of Union] they were absorbed in the Cana- dian federation.” Laskin, at 120. Thus, English constitutional law, which had gradually subjected nearly all royal prerogative power to parliamentary sovereignty, made its way into Canada.4 Moreover, the Crown may for some purposes fall within provincial power under s. 92 of the Consti- tution Act, 1867, and for other purposes fall within federal power under s. 91. For the purposes of Canadian federalism, the Crown therefore cannot be viewed as a single indivisible entity: Laskin, at p. 119. The Crown is “separate and divisible for each self-governing dominion or province or territory”: R. v. Secretary of State for Foreign & Commonwealth Af- fairs, [1982] Q.B. 892 (Eng. C.A.), at 917, per Lord Denning. 52 As the application judge noted, the Queen of Canada fulfils these va- rying roles figuratively, not literally. The Hon. Bora Laskin explains, at pp. 118-19, that “Her Majesty has no personal physical presence in Can- ada.... [O]nly the legal connotation, the abstraction that Her Majesty or the Crown represents, need be considered for purposes of Canadian federalism. The fact that Interpretation Acts whether the federal Act or provincial Acts, give the term “Her Majesty” or the Crown” a personal meaning, is [an] anachronism.” The oath to the Queen of Canada is an oath to our form of government, as symbolized by the Queen as the apex of our Canadian parliamentary system of constitutional monarchy.

4The transfer of the prerogative powers of the sovereign to Parliament is described by W. S. Holdsworth in, A History of English Law (London: Methuen & Co. Ltd., 1909), at pp, 350-51; and by A.V. Dicey in Introduction to the Study of the Law of the Constitution (7th ed.) (London: MacMillan & Co. Ltd, 1908), at pp. 8-10. P.W. Hogg’s Constitutional Law of Canada (loose-leaf consulted on July 18, 2014), (Scarborough: Carswell, 2007), at pp. 1-18-1-22,contains a discussion of the prerogative powers and their current status in Canada. After listing the residual prerogative powers not displaced by statute, Prof. Hogg concludes at p. 1-21 that most governmental power in Canada is exercised by way of statute. Further, any existing prerogative powers are subject to review by the courts as they must be exercised in conformity with the Charter of Rights and other constitutional norms, as well as administrative law norms such as the duty of fairness. 234 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

53 The nature of the oath and its purpose was described by Linden J.A., with whom the majority agreed on this point, as follows in Roach, at pp. 422-25: Through an oath or affirmation, a person attests that he or she is bound in conscience to perform an act or to hold to an ideal faithfully and truly. “An oath relies on the individual’s inner sense of personal worth and what is right.” [Citations omitted.] ... As I stated in Benner v. Canada (Secretary of State), [1994] 1 F.C. 250 (C.A.), at page 281: Swearing an oath as a prerequisite to citizenship is a common practice followed in many countries. It is, in essence, a simple inquiry as to whether an individual is committed to the country and shares the basic principles or ideals upon which the country was founded. 54 Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.

3. The interpretation given to a statutory provision must produce harmony both within the statute itself and in legislation dealing with the same subject matter 55 The principle of harmonization in statutory interpretation presumes a harmony, coherence and consistency between statutes dealing with the same subject matter: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 (S.C.C.), at para. 52; Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 (S.C.C.), at para. 27. 56 The oath to the Queen is expressly required by the Constitution for those wishing to take a seat in the Senate or as a member of Parliament: Constitution Act 1867, s. 128 and sched. 5; Robert Marleau & Camille Montpetit (eds.), House of Commons Procedure and Practice of Com- mons Procedure and Practice, 2000 ed (Montreal: Cheneli`ere/McGraw- Hill, 2000), at p. 176. 57 The Charter cannot be used to attack the requirement that members of Parliament and of the Senate take an oath to the Queen because one McAteer v. Canada (Attorney General) K.M. Weiler J.A. 235

part of the Constitution, the Charter, cannot be used to abrogate another part of the Constitution, such as the pre-existing British North America Acts, (1867 to 1975) now the Constitution Acts: see Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 (S.C.C.), at para. 30. 58 Inasmuch as the oath for members of Parliament is specifically required by the Constitution, and the Constitution cannot itself be unconstitutional, the harmonization principle and the legal norms of rationality and coherence suggest that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter. 59 Insofar as members of Parliament are concerned, “[w]hen a Member [of Parliament] swears or solemnly affirms allegiance to the Queen as Sovereign of Canada, he or she is also swearing or solemnly affirming allegiance to the institutions the Queen represents, including the concept of democracy”: Marleau & Montpetit, at p. 176. 60 Democracy is an unwritten constitutional principle. The unwritten constitutional principles inform and sustain our Constitution, the roles of our political institutions and the scope of rights and obligations in our country: Secession Reference, at paras. 47-54. Democracy is the very principle that permits citizens to advocate for change to our governing institutions, including the monarchy. 61 The harmonization principle supports the interpretation that the oath to the Queen of Canada in the Citizenship Act is the response to the im- plicit inquiry of whether the prospective citizen is willing to abide by this country’s form of government, a democratic constitutional monarchy, unless and until it is changed. The appellants’ argument ignores this principle of statutory construction.

4. Conclusion regarding the interpretation of the oath 62 Applying a purposive and progressive approach to the wording of the oath, with regard to its history in Canada and the evolution of our country, leads to the conclusion that the oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until dem- ocratically changed. Inasmuch as the oath to the Queen is a requirement in the Constitution for members of Parliament and is seen as an oath to our form of government, the harmonization principle supports the conclusion that the oath to the Queen in the Citizenship Act be given a consistent interpretation. This interpretation of the oath, as a symbolic commitment to our form of government and the unwritten constitutional 236 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

principle of democracy, is supported by the legal norms of rationality and coherence.

V. The Charter Claims 63 The appellants’ claims that their rights under the Charter have been violated are based on their misconception of the meaning of the oath to the Queen as an individual. Earlier in these reasons, I held that the reference to the Queen in the oath was a reference to our form of government. The appellants’ incorrect understanding of the meaning of the oath to the Queen is not the basis by which to judge the constitutionality of their application. In R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 (S.C.C.) McLachlin C.J. held, at para. 82: [A] patently incorrect understanding of a provision cannot ground a finding of unconstitutionality. 64 The words of McLachlin C.J. apply equally to this case. In deciding whether the appellants’ rights have been violated under the Charter I cannot therefore adopt their interpretation as to the meaning of the oath.

1. Freedom of expression 65 The appellants argue that the oath violates their right to freedom of expression in two ways. First, they argue that it compels them to convey a message with which they disagree. Second, they state that it constrains their future expression by precluding them from working towards the abolition of the monarchy. 66 The application judge held that because the oath conveys meaning, it prima facie falls within the scope of the guarantee in s. 2(b). He noted that the s. 2(b) guarantee includes the right to refrain from expressing objective, uncontested facts. The application judge agreed with the appellants that the requirement to take the oath places a burden on them that is coercive. Accordingly, he held that the statutory requirement that the appellants recite an oath to the Queen in order to acquire citizenship was a prima facie violation of freedom of expression that was only per- missible if shown to be a reasonable limit on the right to freedom of expression under s. 1 of the Charter. 67 As I have indicated, the Attorney General cross-appeals the application judge’s finding that the oath violates s. 2(b). The Attorney General argues that the oath does not truly associate the appellants with a message with which they disagree and that the appellants have ample opportunity to publicly disavow any association with the message that they McAteer v. Canada (Attorney General) K.M. Weiler J.A. 237

attribute to the oath. The Attorney General further argues that the oath does not deprive the appellants of a meaningful opportunity to express themselves; therefore, despite the finding that the oath is “forced expression,” it does not violate s. 2(b). 68 With respect, I disagree with the application judge’s conclusion that the appellants’ freedom of expression has been violated. For the reasons that follow, I would hold that the requirement to recite an oath to the Queen of Canada in order to become a Canadian citizen does not violate the appellants’ right to freedom of expression and would allow the Attor- ney General’s cross-appeal on this issue.

a. The method for analyzing the appellants’ rights under s. 2(b) 69 The approach to analyzing claims under s. 2(b) was set out by the Supreme Court in Irwin Toy Ltd. c. Québec (Procureur général), supra. Irwin Toy requires the court to answer three questions when dealing with an allegation that a person’s freedom of expression has been violated. The first question is whether the activity in which the plaintiff is being forced to engage is expression. The second question is whether the purpose of the law is aimed at controlling expression. If it is, a finding of a violation of s. 2(b) is automatic. If the purpose of the law is not to control expression, then in order to establish an infringement of a person’s Char- ter right, the claimant must show that the law has an adverse effect on expression. In addition, the claimant must demonstrate that the meaning he or she wishes to convey relates to the purposes underlying the guarantee of free expression, such that the law warrants constitutional disapprobation. 70 Applying these principles to cases involving allegations of compelled speech, such as this one, “[i]f the government’s purpose was to put a particular message into the mouth of the plaintiff ... the action giving effect to that purpose will run afoul of s. 2(b). If, on the other hand, the government’s purpose was otherwise but the effect of its action was to infringe the plaintiff’s right of free expression, then the plaintiff must take the further step and demonstrate that such effect warrants constitutional disapprobation”: Lavigne v. O.P.S.E.U., [1991] 2 S.C.R. 211 (S.C.C.), at p. 267.

i. The oath is expression but its purpose is not to control expression 71 There is no issue that the oath is expressive activity and that, prior to becoming a Canadian citizen, the Act obliges the appellants to take the 238 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

oath. The next question to be addressed is whether the purpose of the oath is to control freedom of expression. 72 The application judge held, at para. 85, that the purpose of the oath “is the strictly secular one of articulating a commitment to the identity and values of the country.” He went on to note, at para. 104, that: [T]he plurality judgment by Bastarache J. [in Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769] emphasized, at para. 57, that “citizenship serves important political, emotional and motivational purposes ... it fosters a sense of unity and shared civic purpose amongst a di- verse population.” In much the same way, the oath of citizenship is an articulation of the value-laden glue of which those bonds are composed. 73 The purpose of the oath is to inquire into prospective citizens’ will- ingness to accept the rights and responsibilities of citizenship. In ex- change for the privileges of Canadian citizenship, the would-be citizen solemnly promises to be loyal to the values represented by Canada’s form of government and to accept the responsibilities of citizenship. 74 The substance of the oath and the history of its evolution also support the conclusion that the oath does not have a purpose that violates the Charter. The substance of the oath reflects the Queen’s constitutional status, and the circumstances giving rise to the oath flow from this country’s foundational documents. More importantly, the oath promotes the unwritten constitutional principles of the rule of law and democracy, as well as the values for which this country stands. Protecting freedom of expression is one of the features of modern democracy: Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 S.C.R. 573 (S.C.C.), at p. 583. Rather than undermining freedom of expression, the oath amounts to an affirmation of the societal values and constitutional architecture of this country, which promote and protect expression. All of these factors “un- equivocally point to a purpose which, far from violating the Charter, flows from it”: Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 (S.C.C.), at para. 43.

ii. Is the effect of the oath to control expression, and if so, is that effect worthy of constitutional disapprobation? 75 The oath has an incidental effect on expression in that it compels prospective citizens to say the words of the oath in order to attain the status of Canadian citizen. However, this effect is not worthy of constitutional disapprobation. I say this for five reasons. McAteer v. Canada (Attorney General) K.M. Weiler J.A. 239

76 First, the appellants have the opportunity to publicly disavow what they consider to be the message conveyed by the oath. The opportunity to publicly disavow a message is relevant to the determination of whether there is a s. 2(b) violation. In Lavigne, at p. 279, Wilson J. (with whom L’Heureux-Dub´e and Cory JJ. agreed) stated that “this Court has already accepted that public identification and opportunity to disavow are relevant to the determination of whether s. 2(b) has been violated.” The Supreme Court came to a similar conclusion in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.). These factors are important because, as Wilson J. noted in Lavigne, at pp. 279- 80: If a law does not really deprive one of the ability to speak one’s mind or does not effectively associate one with a message with which one disagrees, it is difficult to see how one’s right to pursue truth, participate in the community, or fulfil oneself is denied. 77 The appellants submit that the reasons of Wilson J. do not represent the majority opinion of the court.5 I note, however, that in Khawaja, McLachlin C.J. implicitly accepted the relevance of considering whether the legislation in issue has the effect of “chilling” or impairing freedom of expression in determining whether there had been a violation of s. 2(b). The opportunity to disavow the message is relevant to the determination of whether a chilling effect will occur. 78 In this case, the application judge found, at paras. 73 and 79, that the appellants were not prohibited from expressing their own opinions: [T]he notion that the citizenship oath represents a restriction on dissenting expression, including any expression of dissent against the Crown itself, is a misapprehension of Canadian constitutionalism and Canadian history. Differences of opinion freely expressed are the hallmarks of the Canadian political identity, and have been so since the country’s origins...... [N]ot only is advocating abolition of the monarchy explicitly permitted, Committee for the Commonwealth of Canada, supra, but the prospect of separation from the United Kingdom and secession of a province both form the subject of legitimate legal discourse.

5The majority held that the activity at issue — the payment of union dues — was not an attempt to convey meaning and therefore did not constitute expression at all. 240 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Reference re Resolution to Amend the Constitution (“Patriation Ref- erence”), [1981] 1 S.C.R. 753; Reference re Secession of Qu´ebec, [1988] 2 S.C.R. 217. Moreover, a political party dedicated to constitutional fracture can form Her Majesty’s Loyal Opposition in Can- ada’s Parliament. David E. Smith, Across the Aisle: Opposition in Canadian Politics (Toronto: University of Toronto Press, 2013) at 85-86. 79 The appellants, as respondents to the cross-appeal, concede that they have the opportunity to disavow what they characterize as the objectiona- ble elements of the oath. They note that Mr. Charles, a former plaintiff in this proceeding who had taken the oath of the citizenship, has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. Mr. Charles was informed by the Minister of Citi- zenship and Immigration that his recantation had no effect on his citizenship status. However, the appellants state that: It is true ... that citizenship applicants are legally free to disavow the oath. However, the Appellants have affirmed that they would feel morally bound not to do so. In addition, to acquire citizenship they must be seen to be taking the oath to the Queen in a public ceremony. Thus disavowal would be a public display of hypocrisy. 80 The appellants’ subjective belief that, in taking the oath, it would be hypocritical for them to work within the bounds of democracy to change our form of government cannot be used to trump the objective fact that they are entirely free to express their opinions. It is not enough for the appellants to say that their right to freedom of expression has been infringed and that they feel subjectively inhibited from expressing their opinions. 81 Second, as I have indicated, the appellants’ beliefs reflect a fundamental misapprehension of what the Queen of Canada symbolizes and, as McLachlin C.J. stated in Khawaja, at para. 82, “cannot ground a finding of unconstitutionality”. I would add that none of the cases cited by the appellants in support of their position that freedom of speech is violated under s. 2(b) deal with the effect of a claimant’s misunderstanding or misinterpretation of a provision on the assertion of the right. 82 Third, if the reference to the Queen in the oath were eliminated, or made optional for the appellants, such a remedy would only be a superficial cure for the appellants’ complaint. Because the Queen remains the head of our government, any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen. The reference in the oath to the laws of this country necessarily includes McAteer v. Canada (Attorney General) K.M. Weiler J.A. 241

the very foundation for the enactment of those laws — the Constitution Acts — and would be an indirect reference to the Queen. Thus, the appellants’ real complaint would not be addressed. 83 Fourth, it cannot be denied that the Queen is part of Canada’s cultural heritage. One of the responsibilities of citizenship is protection of Can- ada’s cultural heritage: see Citizenship Regulations, SOR/93-246, ss. 15(2)(b)-(c); and s. 5(1)(e) of the Act. The appellants have not challenged these regulations nor any part thereof. 84 Finally, the appellants’ argument also gives no weight to Parliament’s constitutional responsibility to make decisions on citizenship for the broader national interest and the promotion of that national interest by an oath to the Queen of Canada.

b. Conclusion on s. 2(b) 85 The oath is expressive activity that falls within the ambit of s. 2(b). I conclude that the purpose of the oath is not to compel expression; rather, its purpose is to inquire into the would-be citizen’s commitment to our form of government. 86 Accepting that there is an effect on the appellants’ freedom of expression, it does not warrant constitutional disapprobation of the oath for the following five reasons: 1) the appellants have the ability to freely express their dissenting views as to the desirability of a republican government; 2) the effect on their freedom of expression flows from their misunderstanding of the nature of the oath to the Queen of Canada and a patently incorrect interpretation cannot ground a finding of unconstitutionality; 3) the remedy sought by the appellants only addresses their concern at a superficial level and does not resolve their real concern; 4) the appellants’ argument would ignore the role of the Queen as part of Canada’s cultural heritage and 5) purposively interpreted, the reference to the Queen of Canada is a symbolic reference to our form of government, a democratic constitutional monarchy, which promotes Charter values. The fact that the broader public interest is furthered by the oath strength- ens my conclusion that there is no s. 2(b) violation. 87 Accordingly, for the reasons I have given, I would allow the cross- appeal and hold that the appellants’ right to freedom of expression under s. 2(b) is not infringed. Having regard to this conclusion, I need not, strictly speaking, address the question of justification under s. 1. How- ever, in the event that I am wrong in my conclusion and the appellants’ freedom of expression has been violated under s. 2(b), I would hold, as 242 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

did the application judge, that the violation is justified under s. 1 of the Charter, for the reasons below.

2. Limitation on the appellants’ freedom of expression is justified under s. 1 of the Charter 88 Alternatively, if the oath does violate s. 2(b), any such violation is justified. In assessing whether the oath is a reasonable limit under s. 1 of the Charter, the onus shifts to the Attorney General to establish that the oath serves a sufficiently important objective, that the measure used to achieve the objective is rationally connected to the objective, and that the means used impairs the appellants’ rights as little as possible. Finally, there must be proportionality between the effects of the required oath and its objective: R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). 89 The appellants submit that the application judge erred in not examining whether there was some pressing and substantial objective achieved specifically by the impugned portion of the citizenship oath respecting the Queen, as opposed to the rest of the citizenship oath. 90 The Supreme Court has recognized that “a measure of leeway” must be accorded to governments: Hutterian Brethren of Wilson Colony v. Al- berta, 2009 SCC 37, [2009] 2 S.C.R. 567 (S.C.C.), at para. 35. The limit on a right need not be perfectly calibrated when judged in hindsight; it need only be “reasonable” and “demonstrably justified”: Hutterian Brethren, at para. 37; see also Irwin Toy, at pp. 998-99. 91 Insofar as the requirement of a pressing and substantial objective is concerned, the application judge noted that the appellants took no real issue with the legislative objective of expressing commitment to the country or the characterization of this objective as pressing and substantial. Rather, they disagreed with the oath to the Queen as a viable measure of accomplishing that objective. 92 I do not accept the appellants’ submission that the part of the oath referencing the Queen does not serve a pressing and substantial objective. As discussed earlier in these reasons, the Queen is the symbolic apex of our constitutional structure. Requiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective. 93 With respect to the rational connection prong of the analysis, the appellants submit that widespread opposition to the monarchy suggests it is irrational to choose the monarch as the referenced “defining element,” to which prospective citizens must affirm their allegiance. They argue that McAteer v. Canada (Attorney General) K.M. Weiler J.A. 243

the Queen represents different things to different people and that no court can determine that meaning. They renew their submission that the oath to the Queen should be given its plain meaning and is an oath to Queen Elizabeth II as an individual. In support of their submission for a plain- meaning interpretation, they rely on the evidence of the Manager of Citi- zenship Legislation and Program Policy at the Department of Citizenship and Immigration, which appears to accord with their views. 94 I have already rejected the appellants’ plain-meaning approach to interpretation. To the extent that the Manager appeared to agree with it, it is indicative that the government needs to better equip those involved in citizenship policy to understand and convey the meaning and significance of the phrase, “the Queen of Canada, Her Heirs and Successors.” While the appellants point to polling data suggesting that many Canadi- ans do not support the monarchy, the meaning of the oath is not dependent on the latest poll. The determination of whether any infringement of the appellants’ s. 2(b) rights can be justified necessarily depends on the meaning conveyed by the oath. As I have already set out at length, the meaning of the oath to the Queen is not the one put forward by the appellants. The s. 1 analysis must be conducted in this context. 95 Having regard to the Queen’s position in Canada, as discussed earlier in these reasons, and having regard to Canadian history, it is hardly irrational to choose the Queen as a reference point for the oath. In any event, the other aspects of the oath — the promise to observe the laws of Can- ada and fulfil the duties of citizenship — indirectly reference the Queen. The application judge did not err in holding that the oath to the Queen is rationally connected to that objective. 96 The appellants argue that the application judge failed to properly consider whether the means chosen to achieve the government objective — the oath to the Queen — impairs their s. 2(b) rights as little as possible. They submit that the same objective could be obtained by means that would not impair their rights at all, for example, by making the impugned portion of the oath voluntary or by replacing it with a commitment to “equality.” 97 Contrary to the appellants’ submission, the application judge properly considered the minimal impairment portion of the test. He gave lengthy reasons on minimal impairment, and concluded, at para. 68, that when the reference to the Queen in the oath was properly understood, “any impairment of the Applicants’ freedom of expression is minimal.” The application judge correctly noted that the oath to the Queen has little ef- 244 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

fect on the appellants’ rights because, properly understood, the reference to the Queen in the oath is a commitment to democratic values, one of which is equality. 98 The Supreme Court has repeatedly held that the impugned measures need not be the least impairing means available, so long as they fall within a range of reasonable alternatives: RJR-Macdonald Inc. c. Canada (Procureur g´en´eral), [1995] 3 S.C.R. 199 (S.C.C.), at para. 160; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 (S.C.C.), at para. 110. The fact that the government could have chosen to reference a different symbol in the oath — one to which the appellants do not object — does not mean that the existing oath fails the minimal impairment prong of the s. 1 analysis. I agree with the application judge’s conclusion that, properly understood, the oath to the Queen is minimally impairing. 99 Finally, the appellants submit that in balancing the proportionality of the oath’s objective with its effects, the government failed to provide evidentiary support for the salutary effects of its actions. They therefore argue that the proportionality requirement under s. 1 has not been met. 100 The respondent answers this submission by pointing out that Supreme Court jurisprudence has confirmed that experience and common sense or reason and logic may bridge the empirical gap: see Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 (S.C.C.), at para. 88. I agree. 101 The application judge considered the history of the oath, the evolution of the Queen’s role in Canada, and the nature of citizenship, and applied common sense to these facts. He was right to consider whether the appellants’ position as to the deleterious effects of the state action had a modi- cum of credibility or at least made logical sense: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.), at p. 884. While accepting that the appellants’ beliefs were sincere, the application judge held that they reflected a misapprehension and, in the balancing exercise, it was difficult to attribute to them “great objective weight.” In contrast, the salutary effect of the oath to the Queen, “symbolizing the rule of law, equality, and freedom to dissent”, was substantial. 102 I agree with the application judge’s comments on proportionality. Ac- cordingly, I would hold that the application judge properly conducted the s. 1 analysis, and would dismiss the appellants’ appeal on this point. McAteer v. Canada (Attorney General) K.M. Weiler J.A. 245

3. Freedom of religion and freedom of conscience 103 The appellants complain that their right to freedom of religion is violated by the requirement that they swear an oath of allegiance to the Queen of Canada. They further argue that the requirement that the Queen be Anglican makes the oath supportive of one religion to the exclusion of all others. 104 The requirement of an oath to the Queen as a condition for those wishing to become citizens is a well-established tradition of this country. It dates back to the historical compromise of the Quebec Act, supra, in which the British Crown introduced a secular oath to the Queen to secure the loyalty of the French Canadians by recognizing their freedom to practise their religion. The intent behind the introduction of a secular oath was to create a religious-neutral way of permitting individuals to become citizens. In so doing, the new oath permitted French Canadians to vote and participate in public life in a way that was previously precluded because of the religious nature of the oath that had existed until that time. Since the time of the Quebec Act, the oath has not had the purpose of compelling individuals to conform to religious beliefs with which they disagree. 105 The appellants’ submission, or a variation thereof, has been raised twice before. It was first raised before the Federal Court of Appeal in Roach. That court unanimously struck the claim, with Linden J.A. holding, at p. 428 of his reasons: Parliament’s purpose in framing the oath or affirmation was to require a statement of loyalty to Canada’s head of state and its institutions, not to interfere with religious freedom. There is no mention in our Constitution nor in this oath of the Queen in her capacity as Head of the Church of England. The oath requires no statement of allegiance to Anglicanism nor to the Queen in relation to her role in the Church of England. Indeed, the Anglican Church of Canada is governed, not by the Queen, but by an independent Synod established in Canada. Therefore, the purpose of the oath or affirmation is not to interfere with the guarantee of freedom of religion, because its purpose was not in any way to insist upon loyalty to the Anglican Church. 106 A related argument was raised in O’Donohue v. Canada, [2003] O.T.C. 623 (Ont. S.C.J.), aff’d [2005] O.J. No. 965 (Ont. C.A.). In O’Donohue, the prohibition on Catholic monarchs found in the Act of Settlement, 1701, 12 & 13 Will. III, c. 2, was challenged under s. 15 of 246 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

the Charter. Rouleau J. (as he then was) decided that the Charter of Rights did not apply. 107 The argument raised in O’Donohue was not raised before this court. Before us, the appellants do not challenge the constitutionality of the requirement that the Queen be Anglican, found in the Act of Settlement, 1701. They simply argue that this requirement causes the oath in the Citi- zenship Act to violate ss. 2(a) and 15 of the Charter. I would note that a Charter challenge to the religious requirements for the office of the Queen is scheduled to be argued before this court in August 2014. How- ever, as this issue was not addressed in the case before us, I will limit my s. 2(a) (and s. 15) analysis on this aspect of the appellants’ argument to examining whether the religious requirement for the office of the Queen renders the reference to the Queen in the oath unconstitutional. 108 When this argument was made to the application judge, he rejected it, holding, at para. 85, that “the purpose of the oath in Canada is the strictly secular one of articulating a commitment to the identity and values of the country.” He concluded that the religious requirement for the office of the Queen did not render the oath’s reference to the Queen a violation of s. 2(a). As I have interpreted the oath, there is no element of religion in it and it is not an oath to an individual but to our form of government. 109 The application judge also addressed the appellants’ claim that the effect of the oath was to force them to choose between citizenship and making a vow that was contrary to their faith. The application judge held that there was no prima facie violation of the appellants’ freedom of religion, for several reasons. 110 First, he held that the oath is a universal requirement that applies to everyone, without regard or reference to religion. He noted that although the appellants’ claims are based on their particular beliefs, in some cases, the assertion of a right based on a difference must yield to a more pressing public interest. As Abella J. observed in Marcovitz v. Bruker, 2007 SCC 54, [2007] 3 S.C.R. 607 (S.C.C.), at para. 2, not all differences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their full expression are arbitrary. 111 Second, the application judge applied the Supreme Court of Canada’s holding in Reference re Same-Sex Marriage, at para. 46, that “the promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster.” He held, at para. 91, that “[l]ikewise, an oath of citizenship that references a symbol of national values [the McAteer v. Canada (Attorney General) K.M. Weiler J.A. 247

Queen] enriches society as a whole, and does not undermine the rights and freedoms that the society and its head of state foster and represent.” 112 Third, he held that the appellants’ desired remedy, accommodation of their subjective religious beliefs by making the oath optional, would itself undermine the values enshrined in s. 2(a) of the Charter because it would de-secularize the oath and discriminate in favour of one religion. 113 Finally, he held that freedom of religion has both a subjective and an objective component, both of which must be shown to be infringed before s. 1 is addressed. He concluded that the objective component of the test had not been satisfied. In other words, the application judge found that the appellants had failed to establish a non-trivial and non- insubstantial interference with their sincerely-held religious beliefs, as required by Supreme Court jurisprudence: Hutterian Brethren, at para. 32. 114 The appellants submit that the application judge erred in holding that accommodation of their religious beliefs would amount to discrimination against others and argue that recognizing their rights does not imply support for their religion. In particular, they take issue with the application judge’s statement that the appellants’ claims under s. 2(a) “cannot be a platform from which to strike down the rights of others.” They argue that the application judge gave no indication of what “rights of others” would be infringed by making the impugned portion of the oath optional. The appellants claim that making the oath to the Queen optional would not infringe any other rights because there is no religion that requires its ad- herents to take an oath to the Queen. 115 I do not read the application judge’s reasons as the appellants do. Contrary to the appellants’ assertion, he was not suggesting that there is any religion that requires an oath to the Queen. My understanding is that the application judge’s comments were directed to the remedy requested by the appellants, an accommodation of their subjective religious beliefs by making part of the oath optional. The application judge was saying that the religious-neutral aspect of Canadian citizenship would be undermined if a religion-based accommodation were granted. 116 I agree that the remedy of a constitutional exemption would undermine the societal value or common good derived from a universal religious-neutral declaration. Since the effect of granting a judicial exemption would be to undermine the societal value of a universal oath, such a remedy would be inconsistent with the intent of Parliament and would be an unacceptable intrusion into the legislative sphere. It would fundamentally 248 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

change the nature of the legislation and would not be an appropriate remedy: see Robert J. Sharpe and Kent Roach, The Charter of Rights and Freedoms (5th ed.), (Toronto: Irwin Law, 2005), at pp. 425-426. For the same reason, it would be inappropriate to read in wording that would make the impugned portion of the oath optional. 117 Having regard to the jurisprudence holding that s. 2(a) provides separate protection for conscientious beliefs, the appellants note that the application judge did not separately address whether their right to freedom of conscience was infringed. They allege that he erred in failing to address this argument. Mr. McAteer and Mr. Bar-Natan believe that all people are born equal, and they have not taken the oath because they believe the Queen symbolizes the inequality to which they are fundamentally opposed. The appellants assert that their beliefs are protected by freedom of conscience as being deeply-held moral and ethical beliefs fundamental to their identities. 118 Much of the application judge’s analysis respecting freedom of religion applies equally to the appellants’ argument respecting freedom of conscience. As a result, the application judge did not need to address freedom of conscience separately in his reasons. The application judge’s reasons demonstrate that he understood the issues respecting s. 2(a). The path of his reasoning is clear and permits appellate review. 119 Purposively interpreted, the oath exemplifies the very principle s. 2(a) of the Charter was intended to foster. This conclusion is equally applicable to both the appellants’ freedom of religion claims and their freedom of conscience claims. 120 The oath to the Queen of Canada does not violate the appellants’ right to freedom of religion and freedom of conscience because it is secular; it is not an oath to the Queen as an individual but to our form of government of which the Queen is a symbol.

4. Equality rights 121 Before the application judge, two of the appellants suggested that the oath amounted to discrimination on the basis of political belief. One of the appellants argued that the oath discriminated against her based on religious grounds. The application judge held that there was no objective evidence in the form of statistics or demographic data establishing that the oath to the Queen has a disparate impact on religious or racial minorities. He similarly held that there was no objective evidence to substanti- ate the claims of political belief discrimination. Given the absence of ob- McAteer v. Canada (Attorney General) K.M. Weiler J.A. 249

jective evidence of discriminatory purpose or impact, he concluded that the Charter challenge under s. 15(1) could not succeed. 122 The application judge then dealt with the appellants’ argument that they were discriminated against on the grounds of their non-citizenship status. He held that while it was impermissible for the government to distinguish between citizens and non-citizens in contexts unrelated to citizenship, the very concept of citizenship — “membership in a state” — signified the existence of non-members. He relied on the decision of Lin- den J.A. in Lavoie v. Canada (1999), [2000] 1 F.C. 3 (Fed. C.A.), at para. 11, aff’d 2002 SCC 23, [2002] 1 S.C.R. 769 (S.C.C.), and held, at para. 103 of his reasons, that “if an immigrant and a citizen were required to be treated equally within the meaning of s. 15(1) of the Char- ter, the concept of citizenship would disappear.” Arbour J. made a similar comment in her separate concurrence when Lavoie was before the Supreme Court, at para. 110. The application judge concluded that Par- liament could determine the admission criteria for citizenship, such as an oath, without being subject to an equality rights analysis on the grounds of the challengers’ citizenship itself. As with the freedom of religion claim, he held that the appellants could not use s. 15(1) as a means of undermining the equality rights and unity of others: Reference re Same- Sex Marriage, at para. 46. 123 Before this court, the appellants submit that the oath to the Queen discriminates on three different grounds: national origin, religion and the analogous ground of citizenship. They submit that most of their argument relating to s. 15 was not dealt with and, in particular, complain that the judgment does not refer to the claim based on national origin. 124 Even though the application judge did not specifically mention the appellants’ claim based on national origin, his reasons effectively disposed of that claim and are sufficient to permit appellate review. 125 With respect to the application judge’s holding that the appellants failed to meet the objective component of the s. 15 analysis, the appellants acknowledge the lack of objective evidence in support of their submission. They rely on the “direct and unchallenged evidence of Ms. Topey” and the evidence of Howard Gomberg that taking an oath to any human being is contrary to his concept of Judaism, as support for their submission. 126 I agree that proof of adverse effect on a Charter right need not always be based on statistical, demographic, or similar evidence. In some situa- 250 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

tions, the evidentiary basis required to establish an adverse effect can be inferred from known facts and experience: Khawaja, at paras. 78-81. 127 In this case, however, the appellants’ claim of adverse effect is based on their misconception of the meaning of the oath to the Queen as an individual. Earlier in these reasons, I quoted the words of Laskin, at pp. 119-120, that viewing “Her Majesty the Queen” as an individual was an anachronism and held that the reference to the Queen in the oath was a reference to our form of government. As was held in Khawaja, at para. 82, the appellants’ incorrect understanding of the meaning of the oath cannot be used to ground a finding of unconstitutionality. 128 Finally, the appellants also argue that the requirement that the Queen be Anglican constitutes discrimination on the basis of religion. The comments made in disposing of this argument under s. 2(a) also apply in relation to the argument made under s. 15. 129 I agree with the application judge’s conclusion that the appellants’ rights under s. 15 have not been violated. I would dismiss the appellants’ appeal with respect to s. 15.

VI. Conclusion & Disposition 130 For the reasons given, I would hold that the appellants’ rights under ss. 2(b), 2(a) and 15(1) have not been violated. I would dismiss the appellants’ appeal and allow the Attorney General’s cross-appeal. 131 In the event that I am incorrect with respect to my conclusion on s. 2(b), I would hold that any infringement is justified under s. 1. 132 Any other issues raised but not dealt with in these reasons were not pursued on appeal. 133 As in the court below, no costs are sought or ordered.

P. Lauwers J.A.:

I agree.

G. Pardu J.A.:

I agree. Appeal dismissed and cross-appeal allowed. Durve v. Canada (MCI) 251

[Indexed as: Durve v. Canada (Minister of Citizenship and Immigration)] Rajendra Govind Durve, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1332-13 2014 FC 874, 2014 CF 874 Catherine M. Kane J. Heard: April 10, 2014 Judgment: September 15, 2014 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Evidence –––– Alien, citizen of India, arrived in Canada in 2002 and brought application for permanent residence in foreign skilled worker class as financial and business consultant — Application was granted and alien obtained permanent resident status in 2004 — Alien, having been unable to obtain employment, started sole-proprietorship business in business consulting, allegedly facilitating investment in Canada by Indian-based and other overseas firms — From 2004-2009 inclusive, alien was not physically present in Canada for period required of permanent residents in alien’s class — Alien brought application for renewal of residency status, that application was dismissed and alien lost status — Alien then brought application for fresh admission to Canada, which was likewise dismissed — Alien brought application for judicial review — Application was granted and matter was remitted for redetermination — Upon reconsideration, applications were again dismissed — Alien brought application for judicial review — Application dismissed — Board considered fulsome documentary record — Permanent resident may retain that status without adequate physical presence by demonstrating active “business presence” in Canada in relevant period — Alien bore burden of proof with respect to establishing “business presence”, which requires significant Canadian or Canada-directed component — On record before Board, documentation with respect to paid Canadian or Canada-directed work was grossly inadequate — Board did not deny alien procedural fairness or disregard relevant evidence, but rather alien failed to meet essential test for permanent residency — Given that failure, Board’s decision met standard of reasonableness and application was accordingly properly dismissed. 252 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Cases considered by Catherine M. Kane J.: Bi v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CarswellNat 870, 2012 FC 293, [2013] 4 F.C.R. 277, 2012 CarswellNat 3670, 2012 CF 293, [2012] A.C.F. No. 366, [2012] F.C.J. No. 366 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Jiang (2011), 2011 Car- swellNat 1527, 2011 FC 349, 2011 CF 349, 2011 CarswellNat 6439, [2011] F.C.J. No. 560 (F.C.) — considered Chieu v. Canada (Minister of Citizenship & Immigration) (2002), 37 Admin. L.R. (3d) 252, [2002] 1 S.C.R. 84, 2002 SCC 3, 2002 CarswellNat 5, 2002 CarswellNat 6, 18 Imm. L.R. (3d) 93, 208 D.L.R. (4th) 107, 280 N.R. 268, 2002 CSC 3, [2002] S.C.J. No. 1, REJB 2002-27421 (S.C.C.) — followed Chirwa v. Canada (Minister of Manpower & Immigration) (1970), 4 I.A.C. 338, [1970] I.A.B.D. No. 1, [1970] I.A.D.D. No. 1 (Imm. App. Bd.) — followed Durve v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 995, 2011 CarswellNat 3202, 99 Imm. L.R. (3d) 334, 2011 CarswellNat 3936, 2011 CF 995, [2011] F.C.J. No. 1226 (F.C.) — followed Faeli v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 6118, 2005 CarswellNat 6119, [2005] I.A.D.D. No. 267 (Imm. & Ref. Bd. (App. Div.)) — followed Hussain v. Canada (Minister of Citizenship and Immigration) (April 9, 2010), Doc. TA8-09273, [2010] I.A.D.D. No. 552 (Imm. & Ref. Bd. (App. Div.)) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Liyanagamage v. Canada (Secretary of State) (1994), (sub nom. Liyanagamage v. Canada (Minister of Citizenship & Immigration)) 176 N.R. 4, 1994 Car- swellNat 1327, [1994] F.C.J. No. 1637 (Fed. C.A.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Ribic v. Canada (Minister of Employment & Immigration) (1986), 1986 Car- swellNat 1357, [1985] I.A.B.D. No. 4, [1985] D.S.A.I. No. 4, [1985] I.A.D.D. No. 4 (Imm. App. Bd.) — followed Durve v. Canada (MCI) Catherine M. Kane J. 253

Serrano Lemus v. Canada (Minister of Citizenship and Immigration) (2012), 13 Imm. L.R. (4th) 167, 2012 FC 1274, 2012 CarswellNat 4219, 2012 Car- swellNat 4928, 2012 CF 1274, [2012] F.C.J. No. 1374 (F.C.) — considered Tai v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1933, 2011 CF 248, 2011 FC 248, 2011 CarswellNat 471, [2011] A.C.F. No. 289, [2011] F.C.J. No. 289 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25(1) — considered s. 28 — considered s. 28(2) — considered s. 28(2)(a)(ii) — considered s. 28(2)(a)(iii) — considered s. 28(2)(c) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 61 — considered s. 61(1) — considered s. 61(1)(a) — considered s. 61(2) — considered s. 61(3) — considered s. 61(3)(c) — considered

APPLICATION by alien for judicial review of decision of Appeal Division dismissing alien’s appeal from decision dismissing alien’s application for renewal of past permanent resident status or for fresh admission to Canada.

Barbara Jackman, for Applicant Martin Anderson, for Respondent

Catherine M. Kane J.:

1 This application for judicial review addresses the residency requirements for permanent residents prescribed by section 28 of the Immigra- tion and Refugee Protection Act, SC 2001, c 27 [IRPA] and their application to permanent residents who spend periods of time out of Canada working for their own business. The applicant, Rajendra Govind Durve, seeks judicial review of the decision of the Appeal Division of the Immi- 254 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

gration and Refugee Board of Canada (the “Board”) dated January 28, 2013 which found that he had failed to comply with the residency requirements and which upheld the decision to not renew his permanent resident status.

Overview 2 Mr Durve, a citizen of India, landed in Canada in 2002 and was later granted permanent resident status. He incorporated a business best described as a “one-man operation” in Ontario in 2004. He frequently travelled to India and other countries for significant periods of time. In May 2009, Citizenship and Immigration Canada did not renew his permanent resident card because he failed to meet the residency requirement of 730 days in Canada in a five year period. The Board upheld that decision. In Durve v. Canada (Minister of Citizenship & Immigration), 2011 FC 995, [2011] F.C.J. No. 1226 (F.C.) [Durve #1], the Court allowed the judicial review and remitted the appeal back to the Board for a new hearing (de novo). 3 The Board conducted a de novo hearing and again dismissed the appeal on the basis that Mr Durve did not meet the residency requirements of section 28 of the Act; he was not physically present in Canada for 730 days and he did not otherwise comply because he was not outside Can- ada employed on a full-time basis by a Canadian business. The Board found that his business was not an “ongoing operation in Canada”. This decision is now the subject of judicial review. 4 The applicant submits that the Board: denied him procedural fairness; erred in interpreting the provisions of the Act and formulating the test for an ongoing operation in Canada; erred in applying that test; and unreasonably refused to exercise its discretion based on humanitarian and compassionate [“H&C”] grounds. 5 I have considered the Board’s decision, the extensive record and the arguments of the parties and I find that there was no breach of procedural fairness and the decision is reasonable. 6 The Board undertook a lengthy and careful examination of a vast amount of documentary evidence. In response to the guidance provided by Justice Gauthier in Durve #1, the Board considered several factors or indicia to determine whether Mr Durve’s one-man business met the requirements of an ongoing operation in Canada. While a range of factors should be considered, no single factor is determinative as one-man and other small businesses will vary. In the present case, Mr Durve was self- Durve v. Canada (MCI) Catherine M. Kane J. 255

employed and he was the business. He claimed to be working for his Canadian business from wherever he was located. The reality was that he was seldom in Canada for more than several days at a time (with four visits of approximately one month) in the five year period and there was little evidence to show any connection between the advice or consultant work he provided to his clients and Canada. The Board’s determination is factual, based on all the evidence, and there is no basis to disturb its findings. 7 The Board also reasonably concluded that there were no H&C considerations at play to warrant the exercise of its discretion to exempt Mr Durve from the residency requirements. 8 Although the applicant submits that he would be an asset to Canada, and there is no reason to doubt this, he simply did not observe the residency requirements, of which he was well aware and which are not onerous, nor did he establish that his business has sufficient connection to Canada to be considered an ongoing operation in Canada. 9 For the more detailed reasons that follow, the application is dismissed.

Background 10 Mr Durve landed in Canada on May 25, 2002. In March 2008, he applied to renew his permanent resident [PR] status before its expiry, but he left the country for business before receiving a decision. In March 2009, he was advised that Citizenship and Immigration Canada [CIC] did not have enough information to establish that he had met his residency obligation of 730 days in the five year span between April 1, 2004 and March 31, 2009. Later in March 2009, he applied to the Canadian High Commission at New Delhi for a travel document to return to Canada. In June 2009 he was advised that his PR status was revoked along with his application for a travel document. His appeal of that decision was rejected. In Durve #1, at para 23 Justice Gauthier found that the Board had not considered all the evidence and that the very brief “decision does not meet the requirements of justification and transparency applicable under the standard of reasonableness.” 11 In a de novo hearing, the Board considered the same five year span — April 1, 2004 to March 31, 2009. The Board considered all the evidence; the appeal records from the first hearing, three exhibits entered at the first hearing, and new disclosure consisting of six volumes of over 1000 pages. 256 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

The Applicant’s facts 12 Mr Durve first applied to immigrate to Canada as a Foreign Skilled Worker. He describes himself as a financial advisor, with the specialty of promoting Indo-Canadian business relations. He was issued an immigrant visa and landed in Canada on May 25, 2002. In 2004, after two years of looking for employment, he registered a financial consultancy business as 1623709 Ontario Inc, with its corporate office listed at the residence of his settlement advisor, Mr Kapoor. 13 During the five year period at issue, 2004-2009, Mr Durve made approximately 25 to 30 international business trips from Canada. He noted that his consulting contracts included: • An October 16, 2004 agreement with Mississauga-based Skyport Financial Group Inc (“Skyport”); • An ongoing contract with the multi-national company Adept Con- sulting Services Inc (“Adept”); • An ongoing contractual relationship with Mumbai-based Time Media and Entertainment (PvT) Ltd (“Time Media”); and, • An ongoing contract with Mumbai-based Lakeland Chemicals (In- dia) Ltd, (“Lakeland”); and 14 The applicant’s own evidence before the Board was that: • He travelled to India for several reasons: for recuperation following medical treatment; to assist his mother following his father’s death and, more generally, to tend to his aging mother, whom he visits five to six times a year; • He regularly travels to other countries, including the US, several European countries, Thailand, the UK, and the UAE, in order to meet clients and potential clients and to assist with and oversee the implementation of financial business systems. This includes some personal travel of short duration on his trips to Thailand; • He frequently returns to Canada and has a residence here. He divested himself of his property and some of his parent’s proper- ties in India. He purchased a condominium in Canada, which was only completed in 2011, and remains unfurnished pending his permanent resident status. He stays at hotels or at his settlement advisor’s home when he is in Canada; and, • Canada is the base of his business operations. He wound down his consultancy business in India. His efforts to build his business in Durve v. Canada (MCI) Catherine M. Kane J. 257

Canada have suffered due to his uncertain immigration status and the economic downturn. He does not operate business accounts in India, although he has personal accounts there. When in India, he uses his late father’s office. He has income in both Canada and India and files taxes in both jurisdictions.

The Relevant Legislative Provisions 15 The relevant provisions of the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations are set out below: The Act 28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period. (2) The following provisions govern the residency obligation under subsection (1): (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are (i) physically present in Canada, (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, (iv) outside Canada accompanying a permanent resident who is their spouse or common- law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or (v) referred to in regulations providing for other means of compliance; 258 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

(b) it is sufficient for a permanent resident to demonstrate at examination (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident; (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five- year period immediately before the examination; and (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. 28. (1) L’obligation de résidence est applicable à chaque période quinquennale. (2) Les dispositions suivantes régissent l’obligation de résidence: a) le résident permanent se conforme a` l’obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas: (i) il est effectivement présent au Canada, (ii) il accompagne, hors du Canada, un citoyen canadien qui est son epoux´ ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents, (iii) il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale, (iv) il accompagne, hors du Canada, un rési- dent permanent qui est son epoux´ ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents, et qui travaille a` temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale, Durve v. Canada (MCI) Catherine M. Kane J. 259

(v) il se conforme au mode d’exécution prévu par règlement; b) il suffit au résident permanent de prouver, lors du contrôle, qu’il se conformera à l’obligation pour la période quinquennale suivant l’acquisition de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu’il s’y est conformé pour la période quinquennale précédant le contrôle; c) le constat par l’agent que des circonstances d’ordre humanitaire relatives au résident permanent — compte tenu de l’intérêt supérieur de l’enfant directement touché — justifient le main- tien du statut rend inopposable l’inobservation de l’obligation précédant le contrôle. The Regulations 61. (1) Subject to subsection (2), for the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act and of this section, a Canadian business is (a) a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada; (b) an enterprise, other than a corporation described in paragraph (a), that has an ongoing operation in Canada and (i) that is capable of generating revenue and is carried on in anticipation of profit, and (ii) in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined in this subsection; or (c) an organization or enterprise created under the laws of Canada or a province. (2) For greater certainty, a Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada. (3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a perma- 260 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

nent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to (a) a position outside Canada; (b) an affiliated enterprise outside Canada; or (c) a client of the Canadian business or the public service outside Canada. [...] 61. (1) Sous réserve du paragraphe (2), pour l’application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi et du présent article, constitue une entreprise canadienne: a) toute société constituée sous le régime du droit fédéral ou provincial et exploitée de fa¸con continue au Canada; b) toute entreprise non visée a` l’alinéa a) qui est ex- ploitée de fa¸con continue au Canada et qui satisfait aux exigences suivantes: (i) elle est exploitée dans un but lucratif et elle est susceptible de produire des recettes, (ii) la majorité de ses actions avec droit de vote ou titres de participation sont détenus par des citoyens canadiens, des résidents permanents ou des entreprises canadiennes au sens du présent paragraphe; c) toute organisation ou entreprise créée sous le ré- gime du droit fédéral ou provincial. (2) Il est entendu que l’entreprise dont le but principal est de permettre à un résident permanent de se conformer a` l’obligation de résidence tout en résidant a` l’extérieur du Canada ne constitue pas une entreprise canadienne. (3) Pour l’application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi respectivement, les expressions « travaille, hors du Canada, a` temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale » et « travaille à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale », à l’égard d’un résident permanent, signifient qu’il est l’employé ou le fournisseur de Durve v. Canada (MCI) Catherine M. Kane J. 261

services a` contrat d’une entreprise canadienne ou de l’administration publique, fédérale ou provinciale, et est affecté a` temps plein, au titre de son emploi ou du contrat de fourniture: a) soit a` un poste à l’extérieur du Canada; b) soit a` une entreprise affiliée se trouvant a` l’extérieur du Canada; c) soit a` un client de l’entreprise canadienne ou de l’administration publique se trouvant a` l’extérieur du Canada. [...]

The Decision under Review 16 The Board’s 49-page decision is comprehensive. A summary of the decision is set out below to provide the necessary context for the applicant’s arguments regarding the Board’s alleged errors. 17 The Board thoroughly canvassed the submissions of the parties and the guidance provided by Justice Gauthier in Durve #1 noting that Justice Gauthier had directed it to be more precise about the indicia to consider when applying the relevant provisions of the Act and the Regulations in the small business context. The Board also noted that Justice Gauthier had indicated that the question whether there is an ongoing operation in Canada is factual, to be determined by the nature and the degree of the business activities in each individual case and that no particular indicia is determinative. 18 The Board then noted the applicant’s position and submissions, including: • While not physically present in Canada, he satisfies the residency obligation because he is outside Canada due to work for his Cana- dian business, pursuant to subparagraph 28(1) (a)(iii) of the Act. • His business is incorporated under Ontario law and is ongoing. The purpose of incorporation was not to enable him to meet his residency obligations. • There is no requirement that his Canadian business be “for profit” or that work be demonstrated through proper business contracts. Although he does not make a lot of money from his business, this does not mean that he did not work for his Canadian business. 262 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

• His ongoing business activity need not take place in Canada. He continues to work from wherever he travels and that this work is full-time. His situation is analogous to, for example, Canadian mining businesses with international assets. • He does not have a residence outside Canada. • He is a “one-man show” and knows his clients personally. • His time is spent working for his Canadian business on contracts, developing contracts, and developing business projects to bring business to Canada. Some of this work is not remunerated. • He has the financial means to support himself while cultivating clients. 19 As a preliminary issue, the Board addressed Mr Durve’s allegation that he had been denied the opportunity to clarify his financial statements in response to the submissions of the respondent about discrepancies in those documents. The Board noted that an appeal is a de novo hearing and is adversarial in nature. The applicant bears the onus to establish his case on a balance of probabilities with clear and cogent evidence. The Board noted that it was familiar with financial and corporate records and capable of understanding the financial documents provided by the applicant without further clarification. The Board rejected the applicant’s argument that the evidence should not be considered by the Board because it would be unfair and found that it was contrary to the appeal process to suggest that evidence on the record, which had been provided by the applicant himself, should not be considered. The Board noted that the decision of Justice Gauthier had directed it to re-determine the appeal on the basis of “all of the facts and the evidence before the decision-maker”. 20 The Board then focussed on the key issues: whether the appellant had satisfied the residency requirements of section 28 as informed by section 61 of the Regulations; and, if not, whether sufficient H&C grounds warranted special relief. 21 The Board considered whether the appellant had satisfied his residency requirement because he had been “outside Canada employed on a full-time basis by a Canadian business” in accordance with subparagraph 28(2)(a)(ii). The Board noted that this requires consideration of definitions set out in the Regulations and raises four questions: • Is the Canadian business a corporation incorporated under the laws of Canada (paragraph 61(1)(a) of the Regulations)? Durve v. Canada (MCI) Catherine M. Kane J. 263

• Is the Canadian business a corporation and does it have ongoing operations in Canada (paragraph 61(1)(a) of the Regulations)? • Is Mr Durve a full-time employee of the Canadian business or under contract to provide services to the Canadian business (subsection 61(3))? • Is Mr Durve an employee or under contract with the Canadian business and is he assigned on a full-time basis as a term of either his employment or contract to a position outside of Canada or a client of the Canadian business outside of Canada ? (paragraph 61(3)(c))?

Canadian business; ongoing operations in Canada 22 The business was incorporated under the laws of Ontario; the issue for the Board was whether the business has or had ongoing operations in Canada. 23 The Board first distinguished the applicant’s business, being a personal services corporation, from a large company with multiple share- holders, directors and employees. It noted that operations in Canada may not be self-evident where a corporation has a single shareholder, director or employee, where no tangible product is produced and where the business is provided by that sole shareholder, director or employee. 24 It noted, echoing Justice Gauthier’s reference in Durve #1 to Faeli v. Canada (Minister of Citizenship & Immigration), [2005] I.A.D.D. No. 267 (Imm. & Ref. Bd. (App. Div.))), that the term “ongoing” must have some meaning beyond the mere fact of incorporation. The Board acknowledged the importance, as identified by Justice Gauthier at para 15, “of examining the nature of an applicant’s activities while outside of Canada in relation to the business of his or her Canadian company.” 25 The Board considered the ordinary and common sense meaning of the term “ongoing” and the dictionary definition, as “continuing activities”. It also considered the requirement of “in Canada” and concluded that “ongoing operations in Canada” requires that the company’s continuing activities be fully located in Canada. 26 The Board found that Mr Durve’s product is the services he provides and his brain is his primary tool. Therefore, he need not be in any particular place to provide his services. 27 The Board examined the evidence and testimony including Mr Durve’s description of his consultancy services, which included financial 264 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

consultancy, domain and software advice and the business relationships with Skyport and Adept and found that, while it is clear what he does when he is outside Canada, it is not clear what he does in Canada or how his activities outside Canada relate to his business in Canada. 28 It noted at para 34: “[y]et, when the panel considers the totality of the evidence, including the transcript from the first IAD hearing, the disclosure in both hearings and the submission of the appellant’s counsel it remains largely unclear just what the appellant actually does”. 29 The Board extensively reviewed the documents regarding Mr Durve’s work for Adept and Skyport. 30 The Board found that the letters of understanding with Adept did not assist in ascertaining the business activities of 1623709 Ontario Inc. and how they constituted ongoing operations in Canada. The Board reiterated that it was looking at the nature of his activities outside of Canada in relation to the business of his Canadian corporation. The Board concluded that: The activity of a “representative” or “agent” or “employee” of an Ontario corporation marketing the IT services and/or technology of an American corporation to third parties in the Middle East has no relationship to the Canadian company. There is no nexus between the ongoing business of the Canadian corporation and these marketing contracts. Here the corporate vehicle has not been chosen primarily for tax purposes, but rather for immigration purposes. 31 The Board also noted that the 2008 invoices do not show that accounting services were provided to Adept and do not match Mr Durve’s narrative that he provided nine months of business promotion services to Adept. 32 With respect to Skyport, the Board found that the relationship ended in December 2007, two years before the end of the five year span, with no evidence that it was ever renewed. The Board found that the one aspect of the contract with Skyport that could have become an ongoing business operation in Canada never materialized. The Board considered the terms of the contract as well as Mr Durve’s testimony and concluded that he had failed to generate a sufficient client-base for Skyport in India, UK, the US, and Dubai. Instead he merely undertook bookkeeping projects for Skyport on an hourly basis and relied on resources in India to do so. 33 The Board also considered the role of the settlement advisor, Mr Kapoor. Mr Durve used Mr Kapoor’s home address as his business ad- Durve v. Canada (MCI) Catherine M. Kane J. 265

dress and he stayed with Mr Kapoor often while in Canada. The Board noted that Mr Kapoor answered the phone and took the mail for the business office in Canada for a nominal fee of $200 per month. The Board found that this was not an indicator of any form of ongoing operation in Canada. The Board concluded, after considering other evidence, including cancelled checks and an undated service agreement, that Mr Kapoor was more of a service provider and was not an employee. 34 The Board found that various letters from other businesses submitted by Mr Durve only generally described his business activities and did not demonstrate that he performed paid work for these individuals or businesses. With respect to Time Media and Lakeland, the Board noted that neither business indicated that it had a relationship with 1623709 Ontario Inc, but only mentioned a personal relationship with Mr Durve. 35 The Board accepted that much of Mr Durve’s work is done on an informal basis given his personal relationships with his clients and that some work related to business development is unpaid. However, the Board found that there was insufficient evidence of a business with an ongoing operation in Canada. The Board found that the business had no nexus to Canada, but was instead tied to Mr Durve’s own physical location, which could be Canada, India, or elsewhere. 36 The Board stated: “[...] for the purposes of proving that ones Cana- dian business is conducting business abroad for Indian based companies, the lack of formal contracts, letters of understanding etc. goes to the suf- ficiency of evidence. [...] it is this very lack of documentary evidence of all the work conducted by 1623709 Ontario Inc. that calls into question the appellant’s claim to having a business with an ongoing operation in Canada”. 37 After considering the nature of the business activities and finding the evidence lacking, the Board noted that the next most important indicia of an “ongoing operation in Canada” is revenue, as demonstrated by corporate and financial records. The Board noted that other documents, such as utility bills and credit card bills, are of lesser probative value, especially since the applicant did not provide much context to situate them in his business activities. The Board scrutinized the corporate and financial records of 1623709 Ontario Inc and found them to be unreliable because they were prepared by the applicant himself, were unaudited and had no explanatory notes. The Board also found some discrepancies in certain financial statements that could not be reconciled with the invoices. 266 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

38 The Board considered Mr Durve’s submission that there is no requirement to make a profit. The Board did not make any finding that profit was a requirement. The Board noted, however, that there was no indication of how Mr Durve’s work to obtain future business was related to the ongoing operations in Canada of his incorporated business. 39 The Board concluded that Mr Durve had failed to show any ongoing operation in Canada which had any form of nexus to the stated activity of the business. The Board further found that because the two requirements set out in paragraph 61(1)(a) of the Regulations for a “Canadian business” - that of an ongoing operation in Canada, had not been met on a balance of probabilities, there was no need for it to consider the application of sub-paragraph 28(2)(a)iii of the Act, as guided by subsection 61(3) of the Regulations, to assess whether the applicant had been outside of Canada employed on a full-time basis by a Canadian business. 40 Despite this finding, the Board nevertheless considered whether subparagraph 28(2)(a)iii applied.

Employed on a full-time basis by a Canadian business 41 Subsection 61(3) guides the application of subparagraph 28(2)(a)(iii), i.e., whether the permanent resident complies with the residency obligation because he or she is outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province. 42 The Board noted that the jurisprudence on the meaning of “employed on a full-time basis by a Canadian business”, Canada (Minister of Citizenship & Immigration) v. Jiang, 2011 FC 349, [2011] F.C.J. No. 560 (F.C.) [Jiang] and Bi v. Canada (Minister of Citizenship & Immigra- tion), 2012 FC 293, [2012] F.C.J. No. 366 (F.C.) [Bi], was not helpful to the current facts. In Jiang and Bi the permanent residents were employed by larger enterprises that had businesses and employees both in Canada and abroad, and it was possible to view them as being on assignment when abroad. In contrast, Mr Durve occupies his position whether he is in Canada or abroad and his “assignment” is entirely dependent on where he chooses to live for the purposes of doing his work. 43 Despite the inapplicability of the jurisprudence to Mr Durve’s circumstances, the Board took a broad look at the notion of “employed on a full-time basis” and concluded that Mr Durve’s work would not qualify because much of it was spent in business development for no specific client and it did not otherwise relate to the ongoing operations of Durve v. Canada (MCI) Catherine M. Kane J. 267

1623709 Ontario Inc in Canada. The Board rejected the argument that unpaid work is still work, noting that such logic would enable Mr Durve to spend all his time doing research and business development abroad while fulfilling his residency obligation. 44 The Board noted: Since the appellant defines his business in respect of the financial consultancy services he provides his clients to the extent that he is doing unpaid work for no specific client it cannot be said that he is employed on a full-time basis. [...] If there was no or little work aboard (sic) for his Canadian business then logically the justification for the appellants remaining outside Canada was also absent. 45 The Board also compared the applicant’s claimed Canadian personal income and his claimed business activity and found that his personal income exceeded his business income, suggesting that he had income from sources other than his Canadian business (1623709 Ontario Inc) and sup- porting the view that he was not working full time for his Canadian business. The Board concluded that the full extent of the applicant’s work abroad is unknown.

Other Considerations 46 The Board found that despite Mr Durve’s view that his home base is in Canada, this was not the case because he had only spent 279 days in the relevant five year span in Canada. He had no place of residence in Canada and had given the name and address of his settlement advisor on his application for a travel document. The Board found that although the applicant may have sold his own residence in India, he continued to have a residence in India shared with his mother. The Board acknowledged that he purchased two condos in the Toronto area in 2006, but only took possession of one in 2011. The other purchase was cancelled due to construction delays. Buying a condominium under development in Canada does not create establishment nor prove any abiding connection.

Humanitarian and Compassionate Considerations 47 The Board noted that, initially, the applicant had made some effort to establish himself in Canada but that this did not develop and he was merely an occasional visitor. He spent the vast majority of his time abroad. The Board acknowledged his obligations to his parents who were 268 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

elderly and in poor health, but noted that this would or should have been anticipated when he came to Canada and that his family had the means to hire help. The Board concluded that if his familial duties took precedence over his residency obligations to Canada, he should not expect much sympathy. The Board further noted that his family would suffer no hardship if he loses his permanent residence status. He is unmarried and has no family in Canada. His mother remains in India and his only sister is in the United States. The Board remarked that it is not readily apparent what hardship would follow from his loss of permanent resident status, as he has always been able to work wherever he goes. The Board considered the stigma of being a single man in India, but found that his status was a personal decision. The Board also acknowledged his efforts in pursuing his appeal but did not find this to be unique or special and did not warrant an exercise of discretion pursuant to H&C factors. 48 In conclusion, the Board reiterated that, beyond incorporating his company in Canada, it is not evident that Mr Durve’s business ever had an ongoing operation in Canada. The Board rejected an analogy with Ca- nadian mining companies with overseas operations, which involve many Canadian and foreign-based employees. However, the Board did not rule out that one-man operations could meet the requirements of section 61 of the Regulations and noted that the determination relies on the specific facts. The Board found that, in general, unless a one-man operation can establish with clear, cogent and convincing evidence that the Canadian business has ongoing operations in Canada, it cannot use a Canadian incorporation to satisfy the residency obligation. The Board provided two examples of the type of ongoing operation in Canada that could or might be sustained by one-man operations: an accountant’s business with an established and ongoing operation in Canada which is contracted to provide services to a Canadian business’s operations outside Canada on a temporary basis; and a one-man trading company that distributes goods in Canada but requires periodic absences from Canada for the purposes of buying and quality control. 49 The Board concluded that Mr Durve’s business is as described in subsection 61(2) a “business that serves primarily to allow a permanent resident to comply with their residency”.

The Applicant’s Overall position 50 Mr Durve submits that the Board breached its duty of procedural fairness by not providing an opportunity for him to clarify the discrepancies Durve v. Canada (MCI) Catherine M. Kane J. 269

in his financial statements and by not permitting him to address the Board’s concerns about the Skyport contract which Mr Durve submits had a nexus to Canada. 51 He further submits that the decision is not reasonable; the Board did not follow the guidance provided by Justice Gauthier in Durve #1, it im- ported additional requirements into the test for on-going operation in Canada, including that the business be fully located in Canada; erred in applying the test, including by ignoring some evidence; and, erred in determining that the applicant was not fully employed by his Canadian business while outside Canada. The applicant argues that it should be sufficient for the purposes of section 28 for the business to be a “functioning entity” in Canada. 52 Finally, the Board erred in its analysis and in not exercising its discretion in favour of Mr Durve on H&C grounds.

The Respondent’s Overall position 53 The respondent submits that there was no breach of procedural fairness; the Board in its de novo hearing considered all the evidence which had been provided by the applicant and his testimony both at the earlier hearing and the de novo hearing, and the applicant had full opportunity to produce the evidence he relied on. 54 The Board’s decision was reasonable; it properly interpreted the provisions of section 28 guided by the definitions in the Regulations, it identified the indicia or factors it considered in determining whether the applicant had an ongoing operation in Canada and reasonably found, due to the insufficiency of the evidence, that he did not. 55 The Board also reasonably found that there were no special circumstances to warrant the exercise of its discretion on H&C grounds.

Standard of Review 56 Issues of procedural fairness are reviewable on a standard of correctness. 57 Issues of mixed fact and law are reviewable on a standard of reasonableness. The jurisprudence emphasizes that where the standard of reasonableness applies, the role of the Court is to determine whether the decision “falls within ‘a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ (New Brunswick (Board of Management) v. Dunsmuir [2008 CarswellNB 124 (S.C.C.)], at para 47). There might be more than one reasonable outcome. However, as long as 270 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.” (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 59). The Court does not re-weigh the evidence or remake the decision.

The Issues 58 The applicant has raised three issues: 1) Did the Board deny the applicant procedural fairness? 2) Did the Board err in formulating and applying the residency requirements of section 28- in particular subparagraph 28(2)(c) (iii) and the meaning of a Canadian business as an “ongoing operation in Canada”? 3) Did the Board err in its analysis of the H&C factors and is its determination unreasonable?

Did the Board deny the applicant procedural fairness? 59 Mr Durve submits that the Board erred in not providing him with an opportunity to respond to deficiencies and discrepancies in his financial records that were raised by the respondent. He argues that the Board did not make any clear credibility findings against him and should not have simply accepted the respondent’s arguments which indirectly undermined his evidence. 60 He further submits that he was not made aware of the Board’s concerns regarding his contract with Skyport and not provided an opportunity to clarify this work, which had a nexus to Canada. 61 The respondent submits that the onus was on the applicant to demonstrate that the decision to deny his PR status was not reasonable and that his appeal should be allowed. He had the opportunity to reply to the differences and discrepancies that were identified in his financial records, but chose not to do so. Mr Durve and his counsel were aware of the concern raised in the respondent’s submissions and could have dealt with this evidence in reply submissions but did not do so. 62 The respondent adds that although there was no breach of procedural fairness regarding the financial statements, the concerns about the financial records do not affect the Board’s key findings that the Canadian cor- Durve v. Canada (MCI) Catherine M. Kane J. 271

poration had no ongoing operation and that there is no connection between its business activities and Canada.

There was no breach of procedural fairness 63 The principles of procedural fairness do not require the Board to confront the applicant with the accounting differences and discrepancies identified in his own financial records. The applicant was alerted to these discrepancies by the respondent’s submissions and had ample opportunity to disclose additional documentary evidence or to call other witnesses. He did not do so. Nor did his counsel question him at the hearing to elaborate. He was well represented and he produced a record to the Board of more than 1,000 pages, as well as the record from the first appeal. He cannot now claim a breach of procedural fairness. 64 Moreover, Mr Durve describes himself as a financial consultant and, therefore, would have understood and could have further explained the accounting differences and discrepancies identified by the respondent. These records had been provided by Mr Durve and he was aware of their contents; they did not take him by surprise, nor did the respondent’s submissions. 65 The Board noted that while it could have benefitted from specialized accounting knowledge, its own experience and expertise was more than adequate to allow it to analyze the applicant’s submissions and evidence. I agree that this was within the Board’s experience. 66 With respect to Mr Durve’s submissions that the Board failed to put its concerns about his relationship with Skyport to him, I do not agree that there was any breach of procedural fairness. The onus is on him to establish that his business was an ongoing operation in Canada. The Board noted that he provided very little testimony about Skyport. The Board also looked at the transcripts from the 2010 hearing when he was questioned about what he does for Skyport noting the brief answer and that no further questions were put to him by his counsel. Despite the paucity of oral testimony, the contract with Skyport was analyzed in great detail by the Board. It cannot be said that there was a breach of procedural fairness or that the Board ignored his evidence regarding the business relationship with Skyport. 272 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Did the Board err in formulating and applying the residency requirements of section 28 — in particular subparagraph 28(2)(c)(iii) and the meaning of a Canadian business as an “ongoing operation in Canada”? 67 Mr Durve argues that the Board erred in interpreting the provisions of section 28 and section 61 of the Regulations with respect to the meanings of “Canadian business” as an “ongoing operation in Canada”, and im- ported additional elements into the provision including that the business have continuing activities that are fully located in Canada. He submits that the Board did not follow the findings or the direction of Justice Gauthier in Durve #1. 68 In addition, the Board erred in its assessment of whether he was employed full-time by his Canadian business while he was working abroad. 69 Mr Durve notes that the test for “Canadian business” and “ongoing operation in Canada” is factual — there is no single determinative indicator. He submits that his situation must be evaluated in light of the nature and size of his business and the difficulties he has faced. 70 Mr Durve raises many of the same arguments he made to the Board to support his position that his Canadian business was an ongoing operation in Canada, including that his business paid for the services of and rented an office from Mr Kapoor, his settlement advisor, that he started the business after failing to find work two years after landing in Canada, that proper business contracts and financial viability are not legal requirements to a finding of an ongoing operation, that business has been slow given the economic downturn and his uncertain immigration status but that he worked full-time and there was no indication that he received a salary from any other source, that he has an office in Canada at Mr Kapoor’s address, that all consulting fees generated by the business were payable to 1623709 Ontario Inc, and that he had no other residence except for the condo he purchased in Canada but does not live in. He also argues that his travel pattern shows that his home base is in Canada as he leaves from and returns to Canada. 71 Mr Durve now also argues that the Board ignored the evidence of his business relationship with Skyport, a Canadian client that retained him to do work in India because of his business in Canada. He notes that his evidence was that Skyport chose him because he could both outsource labour in India and provide a business in Canada which would comply with Canadian standards and regulations. Durve v. Canada (MCI) Catherine M. Kane J. 273

72 Mr Durve submits that the Board erred in narrowly interpreting “ongoing operation” as continuing activities in Canada because an ongoing operation should also include an ongoing “functioning entity”. Mr Durve submits that his business was indeed a functioning entity in Can- ada with ongoing functions and that this should be sufficient to satisfy the test of ongoing operation in Canada. He submits that his business functions in Canada as reflected in its incorporation, office location and the role played by Mr Kapoor in Canada. 73 In addition, Mr Durve argues that the Board erred by incorporating an additional requirement that the business be “fully” located in Canada; a business which conducts activities abroad could never comply with being fully located in Canada. 74 He also submits that the Board erred in determining that he was not employed on a full-time basis while working abroad for his Canadian company and argues that “full-time basis” does not require paid employment. The Board found he did not work full time because he did not get paid for all his work and his income was low. 75 In his written submissions, Mr Durve asserts that he was physically present in Canada for 730 days in the five year period. He adds that when he is not in Canada, he is working full time for his Canadian business. 76 Mr Durve also submits that the Court should take the opportunity to craft a clear test for the determination of “ongoing operation in Canada” to avoid future litigation and to provide some guidance for permanent resident small business owners, like Mr Durve, who conduct business outside of Canada. 77 The respondent submits that section 28 of the Act as guided by paragraph 61(1)(a) of the Regulations envisions two conjunctive criteria: an ongoing operation and one that is in Canada. The respondent submits that the use of the present tense in the provision signifies that an “ongoing operation” requires a continuing activity, as noted by Justice Gauthier’s decision in Durve #1 at paras 13-15. The term “in Canada” requires that the business activity be conducted in Canada or have a sufficient connection to business activity in Canada. 78 The Board reasonably concluded that the applicant’s business was not an “ongoing operation” and did not have any activities that are in or are sufficiently connected to Canada. 79 With respect to the contracts or letters with Time Media and Lake- land, the respondent notes that the Board considered the evidence and 274 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

found it did not mention a relationship with 1623709 Ontario Inc. With respect to Skyport, the respondent notes that the evidence demonstrated only the intention of the parties, but not how the business relationship ultimately played out. 80 Furthermore, the respondent submits that the Board did not require the applicant’s business to be profitable. The Board found that the business was not ongoing due to the lack of real business activity. In any event, profitability is inherent in a for-profit business and the lack of an expectation of profit would reasonably heighten the risk of a business being viewed as established for the sole purpose of meeting the residency requirements. The respondent suggests that the Board’s comments regarding profit are obiter — but are not unreasonable. 81 The respondent also submits that the Board reasonably concluded that the applicant did not work full time for his business while abroad. The Board’s conclusion was not based on his lack of revenue, but on the lack of evidence; for example, the applicant did not provide evidence about how much time was spent providing services to his clients and his tax returns report income that exceeds the profits of his business. 82 The respondent points to the record regarding the lack of evidence produced by the applicant to support his business activities, noting that he could only produce invoices for work done for the one Canadian company, Skyport, from 2005-2007 in which he brokered to have accounting work done in India. 83 Similarly, he could produce only a few invoices for services rendered for Adept, a US company, for a few months in 2004, 2005, and for one month in 2007. 84 The applicant could not establish that he was employed on a full-time basis by his Canadian business. He worked 80-90 days per year from 2005-2007 providing services to Skyport, but he could provide no information for the time worked for Skyport in 2008 or 2009. Nor could he provide any documentation for the hours worked for Adept in the five year period. 85 The respondent also notes that with respect to the work done for Sky- port, there is no evidence that it had any connection to Canadian law, business practices or accounting rules. The Board noted that the applicant produced no evidence that he is a recognised accountant in Canada and the rate he charged to Skyport was far below what a professional would charge. Durve v. Canada (MCI) Catherine M. Kane J. 275

86 The respondent submits that the Board reasonably found that there must be a sufficient connection between the work and Canada; this is supported by the clear wording of subsection 61(1) of the Regulations.

The Board did not err in interpreting or applying section 28 87 The Board reasonably interpreted section 28 of the Act guided by section 61 of the Regulations and applied the provisions to the evidence before it. The Board directed itself to four questions as noted in its decision and answered each in turn. It considered a range of factors or indicia to determine whether the applicant’s business was an ongoing operation in Canada and reasonably concluded it was not. 88 Having determined that the business was not an ongoing operation in Canada and was, therefore, not a Canadian business, there was no need for the Board to consider whether the applicant could comply with his residency requirements by being “outside Canada employed full-time by a Canadian business”. 89 However, the Board did go on to consider whether the applicant was or would have been a full-time employee of his own business while working abroad, and reasonably found he was not. 90 The Board’s interpretation or “test” for “ongoing operation in Can- ada” was based on the language of paragraph 61(1)(a) of the Regulations. Relying on the plain meaning of the phrase, the Board concluded that “ongoing” must go beyond the mere fact of incorporation, and that it means “continuing activity”. The additional qualifier of “in Canada” requires that the continuing activity be “fully” in Canada. The Board applied the test reasonably, as it examined how the applicant’s activities while outside of Canada related to his business in Canada. 91 I do not agree with the applicant that it would be impossible for the continuing activities to be “fully” located in Canada, where the business is like Mr Durve’s, i.e., a self-employed person who works for his clients wherever he is located. The requirement to be fully located in Canada does not demand that all work and every business activity or service be carried out in Canada but that a sufficient connection exists between work done abroad and the ongoing operation of the business in Canada. However, in my view there must be some business done in Canada and the proportion of business done within Canada and outside of Canada for the Canadian business is a relevant consideration. 92 Based on the evidence, the Board reasonably concluded that it is unclear just what Mr Durve does for his business in Canada while he is 276 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

abroad. The Board underwent a thorough and detailed analysis of the business, including its clientele and contracts, Mr Durve’s relationship with his settlement advisor and his revenues, and reasonably found that the business was not anchored in Canada, but rather followed him wherever he went. 93 The Board also reasonably concluded that Mr Durve’s travel patterns do not support his position that Canada is his home base. In fact, the applicant had no place of residence in Canada. Although he purchased a condo in 2006, he would have been well aware that it would not be ready for several years. Ultimately, he only took possession in 2011, which falls two years outside the relevant period, and he continues to not live in it. The second condo purchase was cancelled due to delays. He used the name and address of his settlement advisor on his application for a travel document in 2008. The Board reasonably concluded that he still has a residence outside Canada, in India, which he shares with his mother. 94 Mr Durve submits that the Board’s interpretation of ongoing operation as “continuing activity” is too narrow and that by relying on dictionary definitions and common sense, as the Board did, an ongoing operation would equally be defined as a “functioning entity”. He does not offer a clear explanation of what a “functioning entity” means, but it would appear to capture Mr Durve’s situation; incorporation in Canada with a mailing address and phone service and an intention to eventually reside in Canada. (I note that the applicant expanded on this notion in post hearing submissions to support a proposed certified question.) 95 In my view, Mr Durve’s proposed interpretation of an ongoing operation as a “functioning entity” is not a good alternative for him. The dictionary definition of “entity” is something that exists by itself or is separate from other things. This would include a business. “Function” or “functioning” has meanings depending on the context but more generally means “operate” or “operating”. So a functioning entity is an operating entity or, in this case, an operating business. 96 Even if “functioning entity” could constitute an ongoing operation, the Board reasonably found that Mr Durve had not established that he had a functioning entity, i.e. an operating business in Canada. 97 I suspect that Mr Durve seeks a lower standard for “functioning entity” that would include simply some presence in Canada. Such an interpretation could not have been contemplated by the legislation as it is intended to permit permanent residents with businesses that have a real and Durve v. Canada (MCI) Catherine M. Kane J. 277

hopefully beneficial connection to Canada to retain their permanent resident status while they pursue their business outside of Canada. 98 Although the Board need not have considered the issue of full-time employment by a Canadian business, it reasonably found that Mr Durve was not a full-time employee of his business. The Board considered Mr Durve’s submissions that there is no requirement that the Canadian business be viable or for profit and that, although he does not work fixed hours, he works full time. Contrary to Mr Durve’s characterization, the Board did not reach its conclusion because he did not make a lot of money or was doing unpaid work, but because most of his time was spent in business development for no specific client that had no link to the ongoing operations of 1623709 Ontario Inc in Canada. 99 The Board considered the not for profit business studies the applicant had produced regarding a potential wine packaging business in India, noting that this did not relate to the ongoing operations of his Canadian company. The Board also noted that the letters from Time and Lakeland did not refer at all to the Canadian corporation. The Board also compared Mr Durve’s tax returns to the revenue generated by the business and concluded that Mr Durve earned from other sources than the corporation and that this discrepancy was not explained to the Board’s satisfaction. The Board concluded, “Since the appellant defines his business in respect of the financial consultancy services he provides his clients to the extent that he is doing unpaid work for no specific client it cannot be said that he is employed on a full-time basis.” 100 The Board considered the available jurisprudence regarding subsection 61(3) of the Regulations, Bi and Jiang, and concluded that the concept of being assigned on a full-time basis did not apply to Mr Durve’s circumstances. 101 I agree that subsection 61(3) of the Regulations does not specifically address the situation of a self-employed person and the Board reasonably considered a more liberal interpretation of that provision in the context of the present facts and concluded, based on the evidence provided by Mr Durve, that he had not established that he worked full-time for his own business and his clients while outside Canada. I would also reiterate that the Board did not need to pursue this having already found that Mr Durve did not have a Canadian business. 102 With respect to the contract with Skyport, the Board examined all the terms of the contract with Skyport and reasonably concluded that the proposed work which could have had a nexus with Canada, and which 278 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

presumably could have established that some of Mr Durve’s work had a nexus to his business in Canada, did not come to fruition. Moreover the contract anticipated that if that work did not occur, bookkeeping services could be provided. The only evidence of work done for Skyport was in fact bookkeeping and this was done in India by persons in India. The Board reasonably concluded that this had no connection to Mr Durve’s Canadian business. The contract with Skyport ended in 2007 and as the respondent notes, the work done for Skyport amounted to 80-90 days per year from 2005-2007. 103 Although Mr Durve did not establish that he was employed full-time for his business, there will be situations where a self-employed person is able to establish that they worked full-time for their Canadian business abroad for a period of time. However, the starting point would be to establish that it was in fact a Canadian business, i.e., with continuing activities in Canada. The Board provided two such examples. 104 With respect to the assertion in the applicant’s written memorandum that he was physically present in Canada for 730 days, this is not at all supported by the evidence. I can only conclude that this statement is in error and was meant to suggest that once his work abroad was taken into account, he would meet the 730 day threshold. However, this is clearly not the case. Mr Durve has not established that his work abroad filled the gap between his 279 days in Canada and the 730 day requirement. 105 Finally, I do not agree with the applicant that Justice Gauthier made findings in Durve #1 that the Board failed to observe or apply, including that Mr Durve had a presence in Canada and that he was credible. 106 I note that Justice Gauthier made it very clear that the reason to allow the judicial review was the lack of justification and transparency in the scant reasons provided by the Board. She also made it clear that on a de novo hearing all the evidence was to be considered. A de novo hearing is brand new and the decision maker is not bound by previous findings — but there were no such findings. Justice Gauthier noted that credibility was not challenged at that time. This is not the same thing as making a credibility finding. 107 The Board on the de novo hearing did not focus on Mr Durve’s credibility but on the insufficiency of evidence. In addition, a presence in Canada is not the test for residency. 108 The Board referred to Justice Gauthier’s decision throughout its decision, and noted in particular that she had identified the need for the Durve v. Canada (MCI) Catherine M. Kane J. 279

Board to consider what indicia or criteria applied to the ongoing operation of a small business. The Board did just that. 109 In Durve #1, Justice Gauthier made it clear that the determination in accordance with section 28 and the Regulations was for the Board to address: [25] Nothing in my decision should be construed as implicitly accepting that Mr. Durve’s company falls within the parameters of subsection 61(1) of the Regulations and that it is not excluded under subsection 61(2) of the Regulations or even that the applicant would meet the requirement of subparagraph 28(2)(a)(iii) of IRPA. The Court simply finds that this matter has not been properly assessed on the basis of all the facts and the evidence before the decision maker and that the said decision maker has not sufficiently explained its reasoning to enable the Court to properly assess the validity of its conclusion. In that respect, I note that it would be helpful if the IAD could be more precise as to the indicia it will look at when considering the application of the above-mentioned provisions to businesses started by new permanent residents on a very small scale and which involve developing clientele abroad. For example, if a one-man operation is not acceptable, it should be clearly spelled out.

The relevant considerations 110 Mr Durve suggests that a clear and consistent approach is needed to determine how to apply the residency requirements for permanent residents with small or even one person Canadian businesses. 111 The Board identified several indicia or considerations and did not rule out that one-man operations could fit within section 28. It provided two examples of one-man operations that could satisfy the criteria as a Cana- dian business and permit the permanent resident to work outside of Can- ada for that business. Other analogous examples could be imagined, but as noted by the Board echoing Justice Gauthier in Durve #1, compliance with the residency requirements is a factual determination. It is not possible to anticipate all the potential fact scenarios and set out a list of criteria which if met, will lead to compliance with the residency requirement. Some criteria will weigh more heavily than others depending on the nature of the business, the time spent within and outside of Canada and, importantly, the nexus or connection between the work outside Canada and the business in Canada. 112 Where the business is a one-man operation with no employees in Canada, more focus will be put on the nature of the business in Canada 280 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

and how the work conducted by the one-man operation or self-employed person relates to the Canadian business. 113 One of the examples cited by the Board is that of an accountant’s business with an established and ongoing operation in Canada contracted to provide services to a Canadian business outside Canada on a temporary basis. This contemplates that the permanent resident conducts business and provides these same services in Canada and that the techniques, business practices, expertise, necessary accreditation or principles applied would be governed by or informed by Canadian practices and would guide the work for the other Canadian business outside Canada. In other words, there is a Canadian “product” being delivered in the form of the services provided by the self-employed or “one-man “operation. 114 I have set out the indicia or considerations noted by the Board and have elaborated on some, but I note that this is not a checklist. The appli- cability of these considerations will vary depending on the facts, as will the weight attached to the various considerations. 115 The basic principles remain that: the onus is on the permanent resident to provide clear and cogent evidence that his business is a Canadian business (an ongoing operation in Canada) and that work done outside Canada is full-time work for the Canadian business; the inquiry is a question of fact to be determined by the nature and the degree of the applicant’s business activities in each individual case; and, the focus is on the nature of an applicant’s business activities while outside of Canada in relation to the business of his Canadian company. 116 An ongoing business is a business with continuing activities in Can- ada. This determination takes into account what the business actually does within Canada, and how this is demonstrated or documented. 117 In assessing whether the business is an ongoing operation, the relevant considerations will vary with the nature and size of the business. Where the business is a self-employed person or a very small business, the goods or services, which would include advice, must be identifiable. 118 The decision maker should consider whether there are any employees (even part-time), associates or contractors in Canada that ensure the business continues to operate in Canada and that services are or could be provided in Canada while the permanent resident is outside Canada conducting business or providing the services of the Canadian business. 119 The corporation’s physical office is a consideration, even in the day and age of the virtual office, and notwithstanding that the business may Durve v. Canada (MCI) Catherine M. Kane J. 281

be able to provide services from elsewhere, including whether there are any employees working from that location (even part- time) and whether any work is done or services provided from that location. The requirement to be “in Canada” involves consideration of the business activities or services carried out in Canada and the link between the business carried on outside Canada with the business in Canada. It is not essential that all work and every business activity or service be carried out in Can- ada but that a sufficient connection or nexus exists between work done abroad and the ongoing operation of the business in Canada. However, as noted above, some business should be done in Canada and the proportion of business done within Canada and outside of Canada is a relevant consideration. 120 The nature of business activities outside Canada and how they advance the overall goal of the business in Canada, and their connection or nexus to the Canadian business is a significant consideration. For example, whether the permanent resident has qualifications or accreditations in Canada that are relied on by those he provides services to outside of Canada and whether the permanent resident uses Canadian business principles and practices or rules of his or her profession guided by Canadian standards in his or her work abroad are all relevant to the issue of nexus. 121 The permanent resident’s pattern of travel, residence in Canada and residence outside of Canada (recognizing that the permanent resident may have both) are also relevant considerations. 122 With respect to assessing whether the permanent resident was employed full-time for the Canadian business, again the nature of the business must provide the context because a self-employed person cannot “assign” him or herself as contemplated by the Regulations. Records of the time spent for specific services provided and clients’ businesses will be informative, including time spent for work that is not remunerated and the reason for this. 123 Unpaid work could qualify as business activities, but it should relate to the ongoing business in Canada. Considerations include whether there is a business plan that forecasts the unpaid or developmental work needed to advance the business with a view to future paid work and the proportion of paid work compared to unpaid work. 124 The revenue of the business should be considered, including whether the financial statements of the business reflect the described business activities and can be reconciled with invoices. Business records that document how the time was spent by the permanent resident on business 282 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

abroad would be useful for the decision maker. If the permanent resident’s personal income exceeds the income from the claimed business activities, it will be more difficult to establish that it is full-time work for the Canadian business.

Did the Board err in its analysis of the H&C factors by failing to consider the jurisprudence? 125 Mr Durve submits that the Board should have approached his appeal from the perspective of retaining his permanent resident status, i.e., posi- tively, as established by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship & Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 (S.C.C.) [Chieu]. 126 He suggests that the Board did not consider the principles from the jurisprudence in assessing his H&C grounds and, in particular, it ignored his unique and special circumstances, which, he submits would evoke the sympathy of the reasonable person (Chirwa v. Canada (Minister of Manpower & Immigration), [1970] I.A.B.D. No. 1 (Imm. App. Bd.) [Chirwa]). He is an unmarried man, growing older, whose only close family is abroad and who has been working for several years to build his Canadian business. His only residence is in Canada. 127 He is financially well-established and will benefit Canada in the long- term. He submits that the loss of permanent resident status is too harsh a sanction given his intention to simply do well in Canada. He notes that the Board had previously identified the relevant factors to consider in Hussain v. Canada (Minister of Citizenship and Immigration), [2010] I.A.D.D. No. 552 (Imm. & Ref. Bd. (App. Div.))) at para 42 [Hussain] which should have been applied. 128 The respondent notes that there is no basis to find the assessment of the H&C grounds to be unreasonable. In addition, the Chirwa standard is not the governing test for H&C relief nor do the Hussain factors necessarily lead to H&C relief.

The H&C assessment is reasonable 129 Paragraph 28(2)(c) permits the decision maker to exercise its discretion to relieve against the breach of the residency requirement where there are H&C considerations. There is no entitlement to an H&C exemption. The Board reasonably declined to exercise its discretion. 130 Although the applicant suggests that the Hussain factors should have been considered, the Board considered similar factors although it did not Durve v. Canada (MCI) Catherine M. Kane J. 283

specifically refer to the jurisprudence. The relevant factors were first ar- ticulated in Ribic v. Canada (Minister of Employment & Immigration) (1986), [1985] I.A.B.D. No. 4 (Imm. App. Bd.) [Ribic] and were en- dorsed by the Supreme Court of Canada in Chieu at para 40, albeit in the context of the removal from Canada of a permanent resident for misrepresentation. In Tai v. Canada (Minister of Citizenship & Immigration), 2011 FC 248, [2011] F.C.J. No. 289 (F.C.), Justice Shore noted that these factors had been extensively relied on for H&C assessments and he applied these same factors in the context of section 28. 131 The Ribic factors are: a) The degree of establishment in Canada including employment and skills training; b) The reasons for leaving Canada; c) The reasons of continued or lengthy stay abroad; d) Whether any attempts were made to return to Canada at the first opportunity; e) The family support available in Canada; f) The impact that the removal has on a person and his family; g) The hardship which the appellant would suffer if he was removed from Canada. 132 While the Board did not refer to or neatly organize the Ribic factors, the decision clearly indicates that it considered and balanced these same factors. The Board considered Mr Durve’s initial establishment in Can- ada and his efforts since that time. It noted that while he may have a relationship with Canada, he has not resided here and he is only an occasional visitor. The Board acknowledged the 2006 purchase of a condo but given that he did not take possession of it until 2011, reasonably found that it was not much evidence of establishment. 133 The Board examined his many departures from Canada and his evidence that the reason was for business, to attend to his father’s estate and to attend to his mother. His lengthy stays abroad were for the same reasons. The Board noted that although he returned to Canada from his travels, it was not with the intention of remaining permanently. 134 Given that Mr Durve has no family here and his only sister is in the US, the Board found no ties to Canada. 135 The Board also found that he would not suffer any hardship, nor would his few family members abroad, due to his loss of permanent resi- 284 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

dent status because he is self-employed and he has always been able to work from wherever he is. 136 The Board was entitled to conclude that, although Mr Durve demonstrated a desire to remain in Canada through the great effort he expended in pursuing his appeals, these efforts are not unique nor do they constitute special circumstances warranting the discretion in his favour. 137 I agree with the respondent that Chirwa has not been adopted by the Courts for other H&C determinations. For example, see Serrano Lemus v. Canada (Minister of Citizenship and Immigration), 2012 FC 1274, [2012] F.C.J. No. 1374 (F.C.), where Justice Near (as he then was) considered a similar argument, albeit in the context of H&C applications under subsection 25(1) of the Act. 138 Regardless, there was no need for the Board to explicitly refer to Chirwa when it clearly considered all the applicant’s submissions and reasonably concluded that there were no unique or special circumstances. While the applicant’s view may be that his situation evokes sympathy to the extent that the Board should exercise discretion in his favour, the Board’s assessment did not lead it to this conclusion. 139 I agree that the loss of permanent resident status is a harsh penalty for anyone who is attempting to transition to permanent residence in Canada. While the applicant hopes to one day be fully integrated into Canadian society and has experienced personal setbacks due to the economic downturn and the health of his parents, the requirements of Canada’s immigration laws are clear and the residency requirements, which demands physical presence for 730 days out of a five year period, or 40%, and provides alternative ways to establish residency, are not onerous. Mr Durve had ample time since 2002 and particularly since 2004 to establish himself in Canada and/or to establish a nexus between his work abroad and his Canadian business.

Proposed Certified Question 140 Mr Durve proposed two questions for certification and has made submissions in support of the questions highlighting their general importance, which to some extent reiterate the arguments made on judicial review. 141 He reiterates the circumstances of his business, asserting that his Ca- nadian corporation has continued to operate in Canada through Mr Kapoor acting on his behalf. Durve v. Canada (MCI) Catherine M. Kane J. 285

142 Mr Durve submits that the Board’s finding that paragraph 61(1)(a) of the Regulations which defines Canadian business as an “ongoing operation in Canada” requires continuing activities fully located in Canada is incorrect in law and unreasonable and will thwart the development of many legitimate businesses. 143 He again submits that the Board relied on dictionary definitions in reaching that interpretation which would also support the meaning of ongoing operation as a continuing “functional entity” (or “functioning entity” as referred to earlier). He submits that his business was and is a continuing functional entity in Canada and that such an interpretation is essential for small and other businesses that do their work entirely outside Canada with only a functional business presence in Canada. 144 He argues that it could not be the intent of the legislators to thwart the development of businesses where work is done out of Canada but the business is in Canada, markets itself as Canadian and brings income into Canada. 145 He further argues that the Board found that he was not fully employed because his unpaid work was not taken into account. He notes that people may work long hours unpaid to build a business. The Board’s conclusion may impact others seeking to maintain their permanent resident status while working abroad and the proposed question is one of general importance. 146 The two questions proposed for certification are: 1. Does the “ongoing operation of a Canadian business referred to in paragraph 61(1)(a) of the IRPA Regulations require that the business be engaged fully in its business activities in Canada, or is it sufficient that the business be a functional entity, whose activities are primarily conducted outside of Canada. 2. Does being “employed on a full time basis” within the meaning of subparagraph 28(2)(a)(iii) of the IRPA only include full time paid employment or can it also include work which is not paid. 147 Mr Durve submits that both questions would be determinative because if the Board had accepted his unpaid work in assessing whether he was outside Canada employed on a full-time basis for his Canadian company and had accepted that the functioning presence of his company in Canada through Mr Kapoor constituted an ongoing operation, then the outcome may have been different. 286 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

148 The respondent submits that the questions do not meet the criteria for a certified question as they do not raise a serious question of general importance that is dispositive of the appeal. The present facts raise only a narrow issue of the one-man business whose operations are conducted significantly outside of Canada. Moreover, the meaning of “ongoing operation in Canada” can be determined by principles of statutory interpretation and the term “in Canada” requires a significant connection to business conducted within Canada or linked to Canadian business activities. This is an issue of statutory interpretation and was reasonably interpreted by the Board. 149 The respondent adds that the second proposed question regarding full-time employment, would not be dispositive. The Board determined that Mr Durve did not establish that he worked on a full-time basis per- forming work for the clients of his corporation nor did he provide evidence of how much work he did to seek new business for his corporation. Even if the questions were answered in the applicant’s favour, it would not be dispositive because he could not establish the extent of his unpaid work for his corporation.

No question for certification 150 The test for certifying a question was set out by the Federal Court of Appeal in Liyanagamage v. Canada (Secretary of State), [1994] F.C.J. No. 1637, 176 N.R. 4 (Fed. C.A.) at para 4. The question must be one which transcends the interest of the immediate parties to the litigation and contemplates issues of broad significance of general application and must be determinative of the appeal. 151 Or, as more simply put in subsequent cases, in order to be a certified question the question must be a serious question of general importance which would be dispositive of the appeal. 152 Neither of the questions proposed by the applicant meets the test. 153 The first proposed question seeks to gain the Court’s possible ap- proval of an interpretation of a Canadian business and ongoing operation in Canada which is not supported by the language of the Act or the Regu- lations. It raises a policy issue which should be left to Parliament; whether a permanent resident can comply with their residency requirements through a business which is “primarily conducted abroad”. In my view, this is not the intention of the legislation, which currently provides several ways for a permanent resident to meet their residency requirements, which as noted above are not particularly onerous, and which Durve v. Canada (MCI) Catherine M. Kane J. 287

contemplates a connection to Canada, that would not be satisfied where the business is primarily conducted abroad. 154 I agree with the respondent that a functioning entity whose primary business activities are conducted outside of Canada with no other connection to Canadian business activities cannot be said to have an ongoing operation in Canada. 155 Mr Durve’s approach would appear to contradict subsection 28(2) which makes it clear that the definition of Canadian business does not include a business that is primarily to allow a permanent resident to meet their residency requirements while continuing to reside outside of Canada. 156 As noted above, “functioning entity” or “functional entity” has no clear meaning and likely means “operating entity/business” and therefore does not differ from the notion of ongoing operation which the Board reasonably interpreted as continuing activities. The argument for a different or broader interpretation is circuitous. Moreover, the Board found that Mr Durve had not established what his business did in Canada — i.e. there was no evidence to establish it was either a functioning entity or an ongoing operation in Canada. 157 The second question would only be dispositive if the applicant had established, first, that he had a Canadian business and, second, that he had evidence to support his full-time work. This is a factual determination and the Board found that he could not so establish. Whether the work was paid or unpaid was not the issue, he could not establish what work was done. As noted above, some unpaid work may be considered as full-time work for the Canadian business if there is evidence to establish that it is done in furtherance of future paid work or is part of the business plan, and the amount of unpaid work is not disproportionate to the paid work.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed. 2. No question is certified. Application dismissed. 288 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

[Indexed as: Galindo Vasquez v. Canada (Minister of Citizenship and Immigration)] Paul Edgardo Galindo Vasquez, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8243-13 2014 FC 782, 2014 CF 782 James Russell J. Heard: July 14, 2014 Judgment: August 7, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was 43 year old citizen of Honduras — Applicant made claim for refugee protection in Canada in 2012, claiming to fear death at hands of prominent individual with whom he previously had same-sex relationship — In 2006, applicant was charged in Florida with two counts of burglary of dwelling and grand theft third degree — Applicant was deported from United States without having stood trial on charges — Board found that there were two drastically different versions of events leading up to criminal charges, which required assessing credibility of evidence — Board preferred Minister’s evidence over applicant’s evidence and found that there were serious reasons for considering that applicant committed crimes of burglary of dwelling and grand theft third degree in Florida — Board found that applicant committed serious, non-political crime before entry into Canada and was excluded from refugee protection under Article 1F(b) of 1951 Convention Relating to the Sta- tus of Refugees — Applicant brought application for judicial review — Applica- tion granted — Decision was quashed and matter was returned for reconsideration by differently constituted board — It was clear that applicant broke into house but Board had to provide evidentiary basis for his intent at time of break- in — Police report and bringing of charges did not refute applicant’s account of his intent on entering house and provided no evidence of that intent — Appli- cant never faced trial and it was not known what evidence he would have adduced to meet charges — Board had to decide whether there were reasonable grounds to support requisite intent for burglary under Florida laws and board failed to do so in reasonable manner — Board failed to provide evidentiary basis for its critical finding that, in breaking into house, applicant’s intent was to steal anything of value he might encounter and that he did steal various items worth approximately $5,000 USD. Galindo Vasquez v. Canada (MCI) 289

Cases considered by James Russell J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — followed Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — considered Aguilar Valdes v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 959, 2011 CarswellNat 2956, 1 Imm. L.R. (4th) 21, 2011 CarswellNat 3971, 2011 CF 959 (F.C.) — referred to Al Yamani v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 4143, 2003 FCA 482, 314 N.R. 347, 246 F.T.R. 320 (note), 2003 CarswellNat 4621, 2003 CAF 482, [2003] F.C.J. No. 1931 (F.C.A.) — followed Betancour v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 767, 2009 CF 767, 2009 CarswellNat 4537, 348 F.T.R. 121 (Eng.), 2009 CarswellNat 2486 (F.C.) — referred to Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — considered Canada (Minister of Citizenship & Immigration) v. Choubak (2006), 291 F.T.R. 129 (Eng.), 2006 CarswellNat 1937, 2006 FC 521, 2006 CarswellNat 3372, 2006 CF 521, 54 Imm. L.R. (3d) 308, [2006] F.C.J. No. 661 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Sharma (1995), 101 F.T.R. 54, 1995 CarswellNat 1774, [1995] F.C.J. No. 1151 (Fed. T.D.) — referred to Caraan v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 FC 360, 2013 CarswellNat 924, 2013 CF 360, 2013 Car- swellNat 1385, 17 Imm. L.R. (4th) 224, 430 F.T.R. 215 (Eng.) (F.C.) — considered Chan v. Canada (Minister of Citizenship & Immigration) (2000), 190 D.L.R. (4th) 128, 260 N.R. 376, 2000 CarswellNat 1512, 10 Imm. L.R. (3d) 167, 185 F.T.R. 159 (note), [2000] 4 F.C. 390, 2000 CarswellNat 3277, [2000] F.C.J. No. 1180 (Fed. C.A.) — considered 290 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2013), 2013 SCC 40, 2013 CarswellNat 2463, 2013 CarswellNat 2464, 361 D.L.R. (4th) 1, (sub nom. Ezokola v. Canada (Minister of Citizenship and Immigra- tion)) 447 N.R. 254, 18 Imm. L.R. (4th) 175, [2013] 2 S.C.R. 678, [2013] S.C.J. No. 40, [2013] A.C.S. No. 40 (S.C.C.) — followed Feimi v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CAF 325, 2012 CarswellNat 5724, 2012 CarswellNat 5013, 2012 FCA 325, 353 D.L.R. (4th) 536, 442 N.R. 374, [2012] F.C.J. No. 1610 (F.C.A.) — considered Ganem v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1147, 2011 FC 1147, 2011 CarswellNat 4003, 2011 CarswellNat 4813, (sub nom. Abu Ganem v. Canada (Minister of Citizenship and Immigration)) 398 F.T.R. 103 (Eng.), [2011] F.C.J. No. 1404, [2011] A.C.F. No. 1404 (F.C.) — considered General Motors Acceptance Corp. of Canada Ltd. v. Town & Country Chrysler Ltd. (2007), 2007 ONCA 904, (sub nom. General Motors Acceptance Corp. of Canada v. Town & Country Chrysler Ltd.) 288 D.L.R. (4th) 74, 232 O.A.C. 168, 2007 CarswellOnt 8313, 88 O.R. (3d) 666, [2007] O.J. No. 5046 (Ont. C.A.) — referred to Giron v. Canada (Minister of Employment & Immigration) (1992), 143 N.R. 238, 1992 CarswellNat 555, [1992] F.C.J. No. 481 (Fed. C.A.) — referred to Ivanov v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1210, 2004 CarswellNat 2984, 2004 CarswellNat 5211, 2004 CF 1210, 261 F.T.R. 211 (F.C.) — considered Jayasekara v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 5525, 76 Imm. L.R. (3d) 159, 2008 CAF 404, 305 D.L.R. (4th) 630, 2008 FCA 404, 2008 CarswellNat 4718, 384 N.R. 293, [2009] 4 F.C.R. 164, [2008] A.C.F. No. 1740, [2008] F.C.J. No. 1740 (F.C.A.) — followed Kent Trade & Finance Inc. v. JP Morgan Chase Bank (2008), 2009 A.M.C. 129, (sub nom. JP Morgan Chase Bank v. Mystras Maritime Corp.) 305 D.L.R. (4th) 442, 2008 CarswellNat 4723, 2008 FCA 399, (sub nom. Kent Trade & Finance Inc. v. JPMorgan Chase Bank) 388 N.R. 39, 2008 CarswellNat 5818, 2009 CAF 399, (sub nom. JPMorgan Chase Bank v. Lanner) [2009] 4 F.C.R. 109, [2009] 1 Lloyd’s Rep. 566, [2008] F.C.J. No. 1736 (F.C.A.) — referred to Kent Trade & Finance Inc. v. JP Morgan Chase Bank (2009), 398 N.R. 394 (note), 2009 CarswellNat 1438, 2009 CarswellNat 1439, [2009] S.C.C.A. No. 48 (S.C.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Galindo Vasquez v. Canada (MCI) 291

Kisimba c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), 2008 FC 252, 2008 CarswellNat 1960, 2008 CarswellNat 491, 2008 CF 252, [2008] F.C.J. No. 321 (F.C.) — referred to Lai v. Canada (Minister of Citizenship & Immigration) (2005), 253 D.L.R. (4th) 606, 332 N.R. 344, 2005 CarswellNat 886, 2005 FCA 125, 2005 Car- swellNat 7390, 2005 CAF 125, [2005] F.C.J. No. 584, [2005] A.C.F. No. 584 (F.C.A.) — considered Legault v. Canada (Secretary of State) (1997), 1997 CarswellNat 1627, 1997 CarswellNat 3953, 133 F.T.R. 320 (note), 219 N.R. 376, 42 Imm. L.R. (2d) 192, [1997] F.C.J. No. 1272 (Fed. C.A.) — referred to Lu v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1476, 2011 CarswellNat 5449, 2011 CarswellNat 6403, 2011 CF 1476, 404 F.T.R. 1, [2011] F.C.J. No. 1797 (F.C.) — considered Moreno v. Canada (Minister of Employment & Immigration) (1993), 159 N.R. 210, 107 D.L.R. (4th) 424, 1993 CarswellNat 124, 1993 CarswellNat 1343, 21 Imm. L.R. (2d) 221, [1994] 1 F.C. 298, [1993] F.C.J. No. 912 (Fed. C.A.) — referred to Mugesera c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), (sub nom. Mugesera v. Canada (Minister of Citizenship & Immigration)) 197 C.C.C. (3d) 233, 2005 SCC 40, 2005 CarswellNat 1740, 2005 Car- swellNat 1741, 254 D.L.R. (4th) 200, 28 Admin. L.R. (4th) 161, 30 C.R. (6th) 39, (sub nom. Mugesera v. Canada (Minister of Citizenship & Immi- gration)) 335 N.R. 229, 47 Imm. L.R. (3d) 16, [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39, EYB 2005-91971 (S.C.C.) — considered Mundi v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CF 1260, 2004 FC 1260, 2004 CarswellNat 3196, 2004 CarswellNat 4142, [2004] F.C.J. No. 1525 (F.C.) — referred to Murillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 3002, 2008 FC 966, 333 F.T.R. 149 (Eng.), 2008 CarswellNat 3705, 2008 CF 966 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Osman v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 2053, [1993] A.C.F. No. 1414, [1993] F.C.J. No. 1414 (Fed. T.D.) — considered 292 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Patel v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 804, 2013 CarswellNat 2688, 2013 CarswellNat 3120, 2013 CF 804 (F.C.) — considered Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 43 Imm. L.R. (2d) 117, 226 N.R. 201, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) 160 D.L.R. (4th) 193, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) [1998] 1 S.C.R. 982, 11 Admin. L.R. (3d) 1, 6 B.H.R.C. 387, [1999] I.N.L.R. 36, 1998 CarswellNat 830, 1998 CarswellNat 831, [1998] S.C.J. No. 46 (S.C.C.) — followed R. v. Power (1994), 2 M.V.R. (3d) 161, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, 117 Nfld. & P.E.I.R. 269, 365 A.P.R. 269, 165 N.R. 241, 29 C.R. (4th) 1, 1994 CarswellNfld 9, 1994 CarswellNfld 278, EYB 1994-80059, [1994] S.C.J. No. 29 (S.C.C.) — considered R. v. Sappier (2005), 2005 NBPC 37, 2005 CarswellNB 658, 34 C.R. (6th) 313, 294 N.B.R. (2d) 278, 765 A.P.R. 278, [2005] N.B.J. No. 483 (N.B. Prov. Ct.) — referred to Ramirez v. Canada (Minister of Employment & Immigration) (1992), 89 D.L.R. (4th) 173, [1992] 2 F.C. 306, 135 N.R. 390, 1992 CarswellNat 94, 1992 Car- swellNat 94F, [1992] F.C.J. No. 109 (Fed. C.A.) — referred to Razzagh v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 755, 2004 CarswellNat 1487, 2004 CarswellNat 4468, 2004 CF 755, 36 Imm. L.R. (3d) 119, [2004] F.C.J. No. 918 (F.C.) — considered Saha v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 872, 2003 CarswellNat 4315, 2003 FC 872, 2003 CarswellNat 2205, [2003] F.C.J. No. 1117 (F.C.) — considered Sayer v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 144, 2011 CarswellNat 1320, 2011 FC 144, 2011 CarswellNat 670, [2011] F.C.J. No. 352 (F.C.) — considered Thambiturai v. Canada (Solicitor General) (2006), 2006 CarswellNat 1664, 2006 FC 750, 294 F.T.R. 268, 2006 CarswellNat 2499, 2006 CF 750, 55 Imm. L.R. (3d) 215, [2007] 2 F.C.R. 412, [2006] F.C.J. No. 966, [2006] A.C.F. No. 966 (F.C.) — followed Ulybin v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 629, 2013 CarswellNat 2579, 2013 FC 629, 2013 CarswellNat 1759 (F.C.) — considered Xie v. Canada (Minister of Citizenship & Immigration) (2004), [2005] 1 F.C.R. 304, 2004 FCA 250, 2004 CarswellNat 2036, 37 Imm. L.R. (3d) 163, 2004 CarswellNat 3972, 243 D.L.R. (4th) 385, 2004 CAF 250, 325 N.R. 255, [2004] F.C.J. No. 1142 (F.C.A.) — considered Zeng v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2868, 2008 FC 956, 2008 CF 956, 2008 CarswellNat 4250, 333 F.T.R. 84 (Eng.), [2008] F.C.J. No. 1186 (F.C.) — considered Galindo Vasquez v. Canada (MCI) James Russell J. 293

Statutes considered: Crimes; Burglary and Trespass, Florida Statutes, Title XLVI, Ch. 810 s. 810.02 — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 348 — considered s. 348(1)(d) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 98 — considered s. 101(1)(f) — referred to s. 101(2)(b) — referred to ss. 102-104 — referred to s. 170(e) — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(a) — considered Article 1F(b) — considered Article 1F(c) — considered

APPLICATION for judicial review of decision by Board determining that applicant was excluded from refugee protection.

Maria Sokolova, for Applicant Edward Burnet, for Respondent

James Russell J.: Introduction 1 This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD or the Board], dated December 6, 2013 [Decision], which found that the Applicant is excluded from refugee protection under Article 1F(b) of the 1951 Convention Relating to the Status of Refugees [Refu- gee Convention].

Background 2 The Applicant is a 43-year-old citizen of Honduras who arrived in Canada on December 24, 2011. He made a claim for refugee protection 294 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

in February 2012, claiming to fear death at the hands of a prominent individual with whom he previously had a same-sex relationship. The RPD did not consider the grounds for protection put forward by the Ap- plicant because it found that he is excluded from refugee protection under Article 1F(b) of the Refugee Convention. That provision, incorporated into domestic law by s. 98 of the Act, precludes protection where there are serious reasons for considering that the claimant has committed a serious non-political crime in another country before their admission to the country of refuge. 3 In December 2006, the Applicant was charged in the State of Florida with two counts of burglary of a dwelling and grand theft third degree ($300-$5,000). He was deported from the US in March 2007 without having stood trial on these charges. It appears he returned to the US ille- gally in March 2008, and remained there until he came to Canada in De- cember 2011. 4 The Minister of Public Safety and Emergency Preparedness [Min- ister] intervened in the RPD proceeding on the issue of whether the Ap- plicant was excluded from refugee protection based on the above-noted charges.

Decision Under Review 5 The RPD found that documents provided by the Minister alleged that the Applicant broke into a dwelling and stole approximately $5,000 worth of possessions. The Minister submitted that if committed in Can- ada, the alleged actions would constitute breaking and entering a dwelling house under s. 348 of the Criminal Code, which carries a maximum penalty of life imprisonment. 6 The Board noted that its role was neither “to try the criminal case to Canadian standards” nor “to establish guilt or innocence according to U.S. law,” but was rather “to establish if there are serious reasons for considering that the claimant committed a serious non-political crime outside of Canada before his entry into Canada” (Decision at para 7). 7 The Board considered “the degree of proof required,” and found that the “serious reasons for considering” standard requires “more than a mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities” (citing Moreno v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 298 (Fed. C.A.); Ramirez v. Canada (Minister of Employment & Immigra- tion), [1992] 2 F.C. 306 (Fed. C.A.) [Ramirez]; Mugesera c. Canada Galindo Vasquez v. Canada (MCI) James Russell J. 295

(Ministre de la Citoyennet´e & de l’Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (S.C.C.) [Mugesera]). The Board broke its analysis up into two parts, addressing first whether there were “serious reasons” for considering that the claimant had committed a non-political crime before entering Canada, and second, whether that crime was “serious” for the purposes of Article 1F(b) of the Refugee Convention. 8 The Board found that there were two “dramatically different” accounts of the events that led to the charges in the US. The Applicant stated in his Personal Information Form [PIF] narrative that he had moved into a new house in Tampa, Florida, and went next door to see if he could use their garbage can. The house was abandoned and in disrepair, he said, and in the four to five months he had lived next door there had been no one living there. He discovered an old vehicle without an engine on the property, and took the key that was left in the ignition because he was attracted by a deer decoration on the key. He then left and went to the store and, when he returned, the police were waiting and arrested him. He made no mention in his PIF of having entered the house. 9 During his testimony before the RPD, the Applicant said that, in addition to taking the key from the old vehicle, he also entered the house. The door was slightly ajar, and he put his shoulder into it and it opened. He was curious and walked around the house, which was in disrepair with the ceiling falling down. He was struck by the artistic beauty of two ceramic dogs, and put them in his pocket. He then left to conduct some business and was arrested by police when he returned later that night. The Board observed (at paras 15-17): The claimant stated he was not aware of being charged with any offences as a result of entering the house. He stated the first he learned of these charges was when he came to Canada and made a refugee claim. He allegedly was held in custody in the U.S. after his arrest on De- cember 20, 2006 until he was deported to Honduras. He stated he was transferred to an immigration hold in February 2007 and asked to be deported to Honduras. He was deported in March 2007. The claimant was asked why he did not include the fact that he entered the house in his PIF narrative and he stated that he had forgotten he actually entered the house and took the two ceramic dogs until in the process of preparing for his Immigration Division hearing. 10 The Board found that the Applicant’s account of these events was “in stark contrast to the evidence entered by the Minister.” A police report 296 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

stated that on December 19, 2006, the Applicant forced his way into an unoccupied dwelling and removed property with an estimated value of $5,000 USD and took it to his residence. He was arrested on the evening of December 20, 2006 as a result of a driving violation, and after being advised of his “Miranda” rights, admitted to breaking into the house and stealing the property. A copy of the charges filed by the State Attorney showed that the Applicant was charged with one count of Burglary of a Dwelling and one count of Grand Theft Third Degree ($300-$5,000). 11 The Minister also submitted a declaration from a Canada Border Ser- vices Agency [CBSA] Officer. The CBSA Officer contacted Robert Earl Knowles Sr., who said that the house belonged to his aunt, who had passed away. Mr. Knowles had been advised of the break and enter by police on the day it occurred. He was told that a group of individuals renting the house next door had broken in through a back window and stolen a large amount of property, and that the culprits had been removed from the US. He said that stolen items included a couple hundred ceramic dogs, a vacuum cleaner, vases, and other items he could not specifically remember. The CBSA Officer observed (at para 22): Although Officer Clarke’s declaration is silent on the particulars regarding the status of the house the charges filed by the State Attorney state that the property was that of Robert Knowles and/or the Estate of Emily Hazel. I conclude from this that the owner of the house was Emily Hazel and that she had died and Robert Knowles was her Executor. 12 The RPD found that the two “drastically different versions” of the events leading up to the criminal charges required an assessment of “the credibility of the evidence.” The Board stated that it had carefully examined the evidence and strongly preferred the Minister’s evidence over that of the Applicant. The Applicant had failed to state in his PIF that he entered the house, and it was not credible that he had forgotten this but remembered taking the key from the old car. It was “more likely that the claimant was trying to hide from the reader that he entered the house.” In addition, the police report was very specific about what had occurred. The Board found that it is “the job of the police in a democratic country like the U.S. to impartially investigate incidents,” and there was no reason to believe this was not done in the present matter. The Board continued (at paras 26-28): ... The police report is corroborated by the charges laid by the State Attorney. The U.S. is a highly democratic country and I find that criminal charges would not be laid if there was not evidence to sup- Galindo Vasquez v. Canada (MCI) James Russell J. 297

port them. The claimant stated that all he was guilty of was taking a key out of the ignition of an old car and taking two ceramic dogs from the house. If this were true then he would not have been charged with Grand Theft Third Degree ($300-$5,000). The value of the key and two ceramic dogs would be far less than $300. I find the claimant’s evidence not to be credible and therefore place little weight on it and place considerably more weight on the evidence contained in the police report and in Officer Clarke’s declaration regarding what Mr. Knowles had to say about the break in of his aunt’s house. I find it implausible that the claimant would face the charges he did if what he stated was true. I therefore find that the claimant broke into his neighbour’s house with the intention of stealing anything of value that he might encounter therein and that he did steal various items of a value of approximately $5,000 USD. 13 Based on the above, the Board found that there were serious reasons for considering that the Applicant committed the crimes of Burglary of a Dwelling and Grand Theft Third Degree in the State of Florida. 14 As to whether these crimes were “serious” for the purposes of Article 1F(b), the Board agreed with the Minister that if the same acts were committed in Canada, the Applicant would have been charged under s. 348(1)(d) of the Criminal Code, which carries a maximum penalty of life imprisonment. The Board then considered the factors set out in Jayasekara v. Canada (Minister of Citizenship & Immigration), 2008 FCA 404 (F.C.A.) at para 44 [Jayasekara], which it enumerated as follows (at para 32): • an evaluation of the elements of the crime; • the mode of prosecution; • the penalty prescribed; and • the mitigating and aggravating circumstances underlying the conviction. 15 The Board found that the Applicant had not appeared in criminal court to answer to the charges, so there was no penalty prescribed. With respect to the elements of the crime, the RPD rejected as not being credible the Applicant’s evidence that he entered the house to satisfy his curi- osity and had no intent of stealing anything, taking the two ceramic dogs only because of their artistic appeal. Rather, the RPD stated that it relied on the police report and court documents. Based on this evidence, the Board concluded that the Applicant was one of several occupants renting 298 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

a house next door to the house in question, and that the owner, Emily Hazel, passed away and her house was left unoccupied. It was not an abandoned house, but rather formed part of an estate, and had not ceased to be a dwelling. The RPD did not accept that it was a run down and crumbling structure as the Applicant described. Rather (at para 36): Ms. Hazel’s nephew, Mr. Robert Knowles, was responsible for the estate and it is logical to conclude that, as executor, he attended to the maintenance needs of the house... 16 It was unclear whether the Applicant was held in custody until deported in March as he alleged, or was released from custody. However, the Applicant had failed to attend an interview for the Pre-Trial Interven- tion program, which suggested he was not incarcerated, and it did not seem logical that the State of Florida would issue a warrant for failing to appear in court on April 16, 2007 if the Applicant had been deported in March 2007. 17 With respect to mitigating factors, the Board found that it was reasonable to conclude that the Applicant was aware that the house he broke into was unoccupied, which would greatly reduce the chances of him having to confront a resident. The State Attorney felt that the circumstances might warrant having the offence dealt with through a diversion program (though in the end the Applicant did not qualify), which suggested it was considered less serious than break and enters committed under different circumstances. 18 With respect to aggravating factors, the RPD observed that s. 348 of the Criminal Code sets out a maximum penalty of life imprisonment for the break and enter of a dwelling house, indicating the seriousness with which Canadian law makers view this offence. The Applicant would have no way of knowing that the owner of the property was deceased; she could have been on an extended holiday or hospitalized, and could return home at any time. The Board found that “[h]e was obviously prepared to take anything of value and was reckless to what kind of harm this might inflict on the owner of the property both in terms of stolen property and psychologically regarding feeling violated and unsafe as a result of the break in.” In addition, he was reckless to the sentimental value the items might hold. To this date, the RPD found, the Applicant has not taken responsibility for his actions, maintaining that he had no intent to steal when he entered the house which was “simply not believa- ble.” In support of this version of events, he “was untruthful in his PIF narrative regarding the circumstances surrounding the criminal charges” Galindo Vasquez v. Canada (MCI) James Russell J. 299

and “omitted any details about entering the house which is a lie by omission.” He had not made restitution to the victim, and although the police report stated that he expressed regret, “his actions avoiding his responsibilities to the court demonstrate the opposite.” The Board continued (at paras 52-53): The claimant was reckless to the fact that break and enter of a dwelling often leave a significant psychological impact on the victims. They no longer feel safe in their residence, a place that should serve as a sanctuary for the owners. Victims often feel violated knowing that someone was in their house and going through their most personal possessions. This, no doubt, is part of the reason that our law makers view this offence with such severity. Although of the belief that the house he broke into was vacant the claimant could not have been assured he would not confront anyone. The executor could have walked in, the owner could have returned (the claimant had no way of knowing the owner was deceased) after their holiday or hospitalization. If he was confronted the chances of this break and enter escalating into something even more serious was a distinct possibility. He obviously was prepared to take this chance. 19 The Board found that these were all aggravating factors, and that after considering all of the factors set out in Jayasekara, above, the crime the Applicant committed was “a serious matter that could reasonably have serious consequences far beyond the loss of property.” As such, the Ap- plicant had committed a serious, non-political crime before his entry to Canada and was excluded from the definition of a refugee and a person in need of protection under Article 1F(b) of the Refugee Convention and s. 98 of the Act.

Issues 20 The Applicant raises the following issues for the Court’s consideration in this proceeding: a. Do the doctrines of res judicata or abuse of process apply, such that the Minister was estopped from arguing certain factual issues before the RPD that were already finally decided in a prior preceding before the Immigration Division of the Immigration and Refugee Board? b. Did the RPD misapprehend evidence about the value of the missing items in a manner that tainted its analysis of the Applicant’s credibility? 300 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

c. Did the RPD fail to properly identify and analyze the offence forming the basis of the Applicant’s exclusion under Article 1F(b) of the Refugee Convention? d. Was the RPD’s approach to assessing the Applicant’s credibility unreasonable? e. Did the RPD err in finding that there was sufficient evidence before it to conclude that there were serious reasons for considering that the Applicant had committed a criminal offence outside Canada? f. Did the Board err in finding that the acts done by the Applicant, even if offences, were serious offences within the meaning of Ar- ticle 1F(b)?

Standard of Review 21 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48. 22 The Respondent argues that the standard of review for a question of exclusion involving the application of s. 98 of the Act and Article 1F(b) of the Refugee Convention is reasonableness, as it involves a question of mixed fact and law: see Lai v. Canada (Minister of Citizenship & Immi- gration), 2005 FCA 125 (F.C.A.) at para 68 [Lai]; Jayasekara, above; Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FCA 325 (F.C.A.) at para 16 [Feimi]. The Applicant agrees, except when it comes to questions of the content and effect of foreign law, which is relevant to issues e. and f. above. The content of foreign law is a finding of fact, the Applicant argues, while the determination of how the foreign law is applied is a question of law. While older case law held that the standard of review for findings of fact with respect to foreign law is reasonableness, the Federal Court of Appeal has recently suggested that it is Galindo Vasquez v. Canada (MCI) James Russell J. 301

correctness, the Applicant argues. The RPD therefore had to be correct in its identification of the elements of the foreign offence and whether they applied to the Applicant: see Canada (Minister of Citizenship & Immigration) v. Sharma (1995), 101 F.T.R. 54 (Fed. T.D.) at para 10; Kisimba c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2008 FC 252 (F.C.) at para 15, citing Canada (Minister of Citizenship & Immigration) v. Choubak, 2006 FC 521 (F.C.) at paras 37, 40; Kent Trade & Finance Inc. v. JP Morgan Chase Bank, 2008 FCA 399 (F.C.A.) at para 33, leave to appeal dismissed [2009] S.C.C.A. No. 48 (S.C.C.) [JPMorgan]; General Motors Acceptance Corp. of Canada Ltd. v. Town & Country Chrysler Ltd., 2007 ONCA 904 (Ont. C.A.) [General Motors]; see also Mugesera, above, at para 59. 23 JPMorgan and General Motors, both above, dealt with appellate standards of review rather than administrative law standards of review on judicial review. However, the observation that, while technically a question of fact to be proven, the content of foreign law is a unique factual question to which the traditional justifications for deference on appeal may be less relevant applies equally in the administrative law context. In JPMorgan, it was not necessary to decide the standard of review on this issue. The Federal Court of Appeal expressed no opinion on the matter, simply noting the finding of the Ontario Court of Appeal in General Mo- tors that a standard of correctness applied. 24 I am mindful of the observation of my colleague Justice Heneghan in Sayer v. Canada (Minister of Citizenship & Immigration), 2011 FC 144 (F.C.) at para 4 that “[a] reviewing court cannot simply take judicial notice of foreign law.” It must be proven with evidence. A standard of correctness implies that I am to make a definitive finding on the proper interpretation of foreign law, but the Court faces the same constraints as the tribunal in that its ability to interpret the foreign law at issue (here the criminal law of the State of Florida) is affected by the quality of the evidence before it. Under these circumstances, it would be disingenuous for the Court to imply that it was offering a “correct” interpretation. The Court must look at the evidence and determine whether the Board reasonably interpreted the foreign law and reasonably applied it to the facts of the case. 25 Furthermore, in the context of criminal inadmissibility, where the foreign law must first be proven and then compared to an equivalent Cana- dian offence, findings on the content of foreign law have been reviewed on a standard of reasonableness: Lu v. Canada (Minister of Citizenship & 302 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Immigration), 2011 FC 1476 (F.C.), at para 12; Patel v. Canada (Minister of Citizenship and Immigration), 2013 FC 804 (F.C.) at para 6; Ulybin v. Canada (Minister of Citizenship and Immigration), 2013 FC 629 (F.C.) at para 19. In my view it would be incongruous to apply a different standard either to the interpretation or the application of foreign law in the present context. 26 As such, I conclude that a standard of reasonableness is applicable to each of the issues set out above. 27 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at para 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 28 The following provisions of the Act are applicable in these proceedings: Exclusion — Refugee Convention 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne a` protéger. 29 Article 1F(b) of the Refugee Convention, incorporated into the Act by s. 98, reads as follows: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: [...] (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [...] Galindo Vasquez v. Canada (MCI) James Russell J. 303

Argument Applicant Issue Estoppel 30 The Applicant argues that it was an abuse of process, resulting in procedural unfairness, for the Minister to challenge the credibility of his testimony on matters that had already been finally decided by the Immigra- tion Division of the Immigration and Refugee Board [ID], and were thus res judicata. He argues that the factual issues surrounding his entry into the neighbour’s house were decided at his admissibility hearing before the ID on August 22, 2013, based on the same evidence presented to the RPD, and the Minister was therefore estopped from re-litigating this issue before the RPD. 31 The Applicant notes that the concept of res judicata applies to proceedings before administrative tribunals (Al Yamani v. Canada (Minister of Citizenship & Immigration), 2003 FCA 482 (F.C.A.) [Al Yamani]) and that there are two types of res judicata: cause of action estoppel, and issue estoppel. It is only the latter that is at issue here, he says, and a three part test applies: (1) the issue must be the same as the one decided in the prior proceeding; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Al Yamani, above; Thambiturai v. Canada (Solicitor General), 2006 FC 750 (F.C.)) [Thambiturai] 32 In the present case, the Applicant argues, the “issue of credibility between the Minister’s evidentiary documents and applicant’s testimony” was finally decided by the ID on August 22, 2013. Both proceedings were based on the same evidence (including substantially the same testimony from the Applicant at both hearings), and both tribunal members had to find the facts respecting the Applicant’s conduct and decide if it met the elements of the offence of burglary in Florida. While a judicial review of the ID decision is pending, the Applicant argues that it relates solely to the ID’s use of foreign law, not credibility or other fact findings. 33 The Applicant says that the Minister did not take issue with the ID’s finding that the Applicant was credible in his description of the events that led to the criminal charges against him. Nor did the Minister re- evaluate his eligibility for a refugee claim and cancel his hearing, as permitted by ss. 102 and 104 of the Act where a person is found inadmissible for serious criminality. The Applicant argues that it was an abuse of 304 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

the Board’s process for the Minister to allow the matter to go to an RPD hearing and then, by way of collateral attack on the ID decision, re-litigate issues finally decided by the ID by urging the RPD to find that he was not credible on the same factual points. This created duplicative proceedings and inconsistent decisions and, as a result, the Applicant was treated unfairly. He was found to be credible in one proceeding, and later, having given the same testimony, found not to be credible on the same factual matters and excluded from refugee protection.

Misapprehension of Evidence Regarding the Value of the Missing Items, Affecting the Board’s Assessment of Credibility and the Seriousness of the Applicant’s Conduct 34 The Applicant argues that he Board erred in concluding that the items allegedly missing from the house were worth $5,000, when there was an insufficient basis in the evidence to make such a finding. The Applicant testified that he could not state a value for the items he took, but in his mind they had almost no monetary value. Robert Knowles could not state a value for the items, as reported in the CBSA Officer’s statutory declaration. The Board found that the police report put the value at $5,000, and that this was reflected in the indictment for grand theft ($300- $5,000). However, the Board’s reading of this evidence was incorrect. $5,000 is the upper limit of the charge listed on the indictment, and theft of $5,000 or more is a different offence in Florida, the Applicant argues. The writing in the police report is almost illegible; it is impossible to tell whether it says the items were valued at approximately $5,000 or $500.00, similar to how the figure $130.00 is written immediately below in the same report. The missing items are not fully listed, described or appraised in any document in the record. 35 The Applicant argues that this misapprehension of the evidence affected the Board’s assessment of the Applicant’s credibility about what he took and his intentions, and the Board’s view of the seriousness of the Applicant’s conduct.

Failure to Properly Identify and Analyze the Offence Forming the Basis of Exclusion 36 The Applicant argues that the RPD had an obligation to make a factual finding about the offence that forms the basis of the Applicant’s exclusion from protection: Zeng v. Canada (Minister of Citizenship & Im- migration), 2008 FC 956 (F.C.) [Zeng]. It had to identify the elements of Galindo Vasquez v. Canada (MCI) James Russell J. 305

the foreign offence (including the defences) and have a basis in the facts to find that they were met. While not required to list or refer to each element of the offence, the Board’s reasons must make it sufficiently clear why it was of the view that the offence had been committed: Jayasekara, above; Zeng, above; Ivanov v. Canada (Minister of Citizenship & Immigration), 2004 FC 1210 (F.C.). 37 The Applicant says the legal foundation of this case was complex, involving a highly technical area of Florida’s law, and that the Board failed to properly analyze the underlying legal framework. He says the RPD failed to adequately differentiate between the offences of grand theft and burglary, and therefore erred in law by failing to identify the foreign offence for which the Applicant was being excluded from protection. Due to the lack of discussion of this issue in the Decision, the reviewing Court cannot conclude that the Board understood the intricacies of the offence of burglary in the law of Florida. In the absence of a foreign conviction, this lack of legal analysis is fatal to the Decision. The case turned on whether there were serious reasons to consider that burglary was committed, since the lesser offences included in that offence (such as theft) would not qualify as serious under Article 1F(b): Osman v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 1414, 46 A.C.W.S. (3d) 101 (Fed. T.D.). 38 While the Applicant admitted that his act of taking items from the house met both the actus reus and mens rea requirements of the offence of theft, he argues that the offence of burglary under s. 810.02 of Chapter 810, Title XLVI of the 2012 Florida Statute requires that an “intent to commit an offence therein” be present at the time of entry into the dwelling, structure or conveyance in question. If the accused does not intend to commit offences at the time of entry, burglary is not established, even though the accused may later form such an intent and in fact do so. The Applicant testified that he did not have an intent to commit theft at the time of his entry into the neighbour’s house, and the documents submitted by the Minister are silent on the issue of intent at the time of entry. The Board (unreasonably in the Applicant’s view) found the Applicant not to be credible, accepted the Minister’s version of events, and appears to have decided that the elements of burglary were established based on that version of events. However, there was no discussion about why those elements were established, and in particular why the element of intent to commit offences at the time of entry was established. There was, the Applicant argues, neither documentary evidence of such an intent nor evidence of circumstances from which it could be inferred. 306 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Moreover, there were contradictions in the Minister’s evidence regarding the circumstances of the offence that were not resolved by the Board (Did the Applicant act alone or with a group of men? Did he enter through the door or a window?), and this makes it impossible to discern why the Board found that the Applicant committed burglary rather than a combination of lesser offences such as trespass and theft. The Board stated that the Applicant “obviously” intended to steal anything of value, but the reasons do not state when that intention arose. 39 The Applicant submits that the Board conflated the intent requirements of the Florida offences of grand theft and burglary, and in doing so, ignored expert evidence regarding these offences submitted by the Applicant. Having missed this important detail, the Board thought the Applicant’s denial of an intent to commit offences at the time of entry was a denial of his eventual intent to steal the ceramic dogs (Decision at para 34). Only this reading of the reasons can explain the Board’s credibility findings and its comment that the Applicant continues not to take responsibility for having committed offences, when in fact he had freely admitted to the theft and expressed remorse for his actions.

Credibility Analysis Was Unreasonable 40 The Applicant says that the Board had a duty to grapple with inconsistencies in the evidence and make sufficiently clear findings about the facts constituting the offence that forms the basis of exclusion. Where credibility is an issue, the Board is required to give clear and unmistake- able reasons in support of its findings: Moreno v. Canada (Minister of Employment & Immigration) (1993), 107 D.L.R. (4th) 424 (Fed. C.A.). Here, the Board appears to have found that the evidence presented an all- or-nothing credibility contest between the Applicant’s testimony and the Minister’s documents, rather than considering the strengths and weak- nesses of each. While it fully accepted the Minister’s documents, the Board did not deal with significant inconsistencies in that evidence, to the point that the reasons do not make clear what facts the Board found to be established. The police report and the CBSA Officer’s declaration offer very different accounts of what occurred, the Applicant argues, and the inconsistencies related directly to the nature and seriousness of the offence in question. 41 Moreover, the Board failed to consider that the Applicant’s testimony was consistent with the police report, and that from the beginning the Applicant was forthcoming and remorseful about what occurred. The Galindo Vasquez v. Canada (MCI) James Russell J. 307

Applicant never denied that charges were laid against him. Rather, his position was that had he gone to court, he would have been able to raise a defence to the offence of burglary — the only offence that is relevant to the issue of exclusion under Article 1F(b). 42 The Board’s finding that it is “implausible that the claimant would face the charges that he did if what he stated were true” is unreasonable and unsupported by the record. The extent of the police investigation, the Applicant says, was attendance at the scene, interviews with the complainant and the Applicant and preparation of the police report. The evidence was gleaned from the interviews. No other evidence is referenced and it is improper for the Board to speculate that it existed. The facts that came out of this investigation could form the basis of several criminal offences, the most serious of which was burglary. There is absolutely nothing in the documents that suggests which offence the Applicant’s mens rea was consistent with. It was therefore entirely possible for the Applicant to have been charged with burglary and to have had a credible defence. The sole fact of the criminal charge was not enough to undermine the Applicant’s credibility when he denied that he committed burglary: Aguilar Valdes v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 959 (F.C.) at para 46. 43 The Applicant says the Board’s all-or-nothing approach to credibility caused it to reject even innocuous and uncontested evidence from the Applicant. For example, the Applicant testified that the neighbouring house was in disrepair. He was not challenged on this and it was consistent with all the other evidence, which stated that the house was unoccupied. However, the Board rejected this evidence and found that the executor of the estate was managing the house and renting it out — facts for which there was no basis in the evidence — and viewed this as a significant aggravating factor relating to the seriousness of the offence. 44 It was also unreasonable for the Board to draw a negative credibility inference from the fact that the Applicant revealed more details of what happened at the hearing than in his PIF. The Applicant explained that he was unaware of the exact nature of the charges before he saw the documents from Florida in preparing for his ID hearing. In his PIF narrative, which focuses more on risk in a home country than criminality, he freely admitted to having been in trouble with US authorities. When asked by counsel about taking the ceramic dogs when preparing for the admissibility hearing, the Applicant remembered that he had done so and immediately admitted the surrounding circumstances to Canadian authorities. 308 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Contrary to the Board’s findings that he was attempting to deceive authorities or was avoiding responsibility for his offences, the Applicant was forthcoming to the best of his ability. The fact that he made significant statements against interest rather than denying the allegations wholesale should have made him more and not less credible.

Unreasonable Conclusion that “Serious Grounds to Believe” Standard Was Met 45 The Applicant argues that when all credible aspects of the evidence are properly considered, the following is established: the Applicant, acting alone, entered the neighbouring unoccupied house through the door, because it was old, appeared to be abandoned and he was curious. He had no intention to commit any offences at the time of entry, but while inside, took two ceramic dogs and a key, which he admitted was theft. 46 Since the Applicant had no intention to commit offences when he entered the house, he argues, there are no serious grounds to believe he committed burglary. This was the only offence that could form the basis of the finding of exclusion from protection.

Unreasonable Finding that the Offences Were “Serious” Within the Meaning of Article 1F(b) 47 The Applicant argues that the Board unreasonably concluded that the offences committed were serious within the meaning of Article 1F(b). In addition to the alleged errors with respect to the value of the missing items and the failure to identify and discuss the elements of the offences discussed above, the Applicant says a number of aggravating facts considered by the Board have no basis in the record. There was no basis for the finding that he intended to take “anything of value,” as there was no full listing or appraisal of the items taken. Furthermore, the Board found, without any support in the record, that: • Someone could have returned to the house at any time; • The Applicant was obviously prepared to take anything of value, even sentimental value, and was reckless to the physical and psychological harm this would inflict on the owner; • The Applicant has not taken responsibility for his actions; • The Applicant has not made restitution and has avoided his responsibilities to the court; Galindo Vasquez v. Canada (MCI) James Russell J. 309

• The Applicant was prepared to take the chance that the break-in would escalate into something more serious. The Applicant argues that none of these scenarios has any basis in the evidence, and the Applicant was not asked about any of them during the hearing. There was no information that anyone was living in the house or planned to visit it, that any person reported feeling violated or suffering psychological harm, that any of the items had sentimental value to any person, that the Applicant was consciously taking a chance that the break-in would escalate, or that there was any chance it would. The Board’s conclusions on these points are speculative and unreasonable, the Applicant argues. Moreover, the finding that the Applicant was avoiding responsibilities to the court is inconsistent with the Board’s own analysis that it was unable to determine what happened to the Applicant before his deportation to Honduras: whether he was avoiding responsibilities to the court or there were some administrative oversights by US authorities. 48 All information suggested that the house was unoccupied and had been so for some period of time. Thus, the Applicant submits that it had ceased to be a dwelling house in law, and this was a mitigating factor. There was no basis in the facts to conclude that the executor continued to permit any person to reside there: see R. v. Sappier, 2005 NBPC 37 (N.B. Prov. Ct.) .

Respondent No Abuse of Process or Issue Estoppel 49 The Respondent argues that there is no merit in the Applicant’s serious allegation of an abuse of process by the Minister. The case law is clear that establishing an abuse of process “requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice” and there must be “conspicuous evidence of improper motives or bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed”: R. v. Power, [1994] 1 S.C.R. 601 (S.C.C.) at para 17; Blencoe v. British Columbia (Human Rights Com- mission), 2000 SCC 44 (S.C.C.) at para 120 [Blencoe]; Caraan v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 360 (F.C.) at para 40. The Minister properly exercised its discretion to intervene at the RPD hearing, as is its statutory right under s. 170(e) of the Act. While the Applicant cites ss. 102 to 104 of the Act and the fact 310 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

that the Minister did not re-determine the Applicant’s eligibility after the inadmissibility claim, the ineligibility provision for serious criminality does not apply in these circumstances. It applies only where the inadmissibility arises from a conviction outside of Canada meeting certain criteria: Act, ss. 101(f), 101(2)(b). 50 Furthermore, the Respondent argues, this Court and the Federal Court of Appeal have found that there is no issue estoppel, nor is it unreasonable for the Minister to intervene at the RPD hearing. The Court of Ap- peal’s analysis in Feimi, above, at paras 19-21 says that there are no express statutory limitations on the Minister’s discretion to intervene before the RPD, and that (at para 21): ... The issues at the eligibility and exclusion stages of processing a refuge claim are not the same. Thus, no question of estoppel can arise, even when the same criminal conduct underlies both the danger opinion at the eligibility stage and intervention at the exclusion hearing. See also Ganem v. Canada (Minister of Citizenship & Immigration), 2011 FC 1147 (F.C.) at para 43 [Ganem].

Board Reasonably Found Standard of Proof Met 51 The Respondent says that the RPD set out in detail why it “strongly” preferred the objective evidence of the US police report, the criminal charge and the information in the CBSA Officer’s declaration. Based on this evidence, the Board determined that the Minister had established that there were “serious reasons for considering” that the Applicant committed a crime in the US. The Board was entitled to weight all of the evidence and has complete jurisdiction to determine plausibility, gauge the Applicant’s credibility and draw the necessary inferences: Mundi v. Canada (Minister of Citizenship & Immigration), 2004 FC 1260 (F.C.) at para 11; Aguebor v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 732 (Fed. C.A.) at para 4 [Aguebor]; Giron v. Canada (Minister of Employment & Immigration), [1992] F.C.J. No. 481 (Fed. C.A.). 52 The Respondent notes that an exclusion hearing is not in the nature of a criminal trial, and the onus on the Minister is to establish only that there are “serious reasons for considering” that the refugee claimant has committed a crime before coming to Canada: Lai, above, at paras 23, 56; Murillo v. Canada (Minister of Citizenship & Immigration), 2008 FC 966 (F.C.) at para 24. “Serious reasons for considering” is equivalent to Galindo Vasquez v. Canada (MCI) James Russell J. 311

“reasonable grounds to believe.” It requires more than suspicion but less than proof on a balance of probabilities, and will exist where there is an objective basis for the belief that is based on credible and compelling information: Mugesera, above, at paras 114-116; Lai, above, at para 25; Xie v. Canada (Minister of Citizenship & Immigration), 2004 FCA 250 (F.C.A.) at para 23 [Xie]. 53 Here, the Respondent argues, the Respondent had sufficient evidence based on the police report, the criminal charge, and the Applicant’s own admissions that he went into his neighbour’s house with the intent of stealing a garbage can, forced the door open, walked around and took objects from the home and vehicle. Both this Court and the Court of Ap- peal have held that the Board can rely on an indictment and an arrest warrant to conclude, reasonably, that there are serious grounds for considering that a refugee claimant has committed a crime. The Board can consider evidence of charges being laid even if those charges do not result in convictions: Xie, above, at paras 17-23; Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192 (Fed. C.A.); Ganem, above, at para 27; Betancour v. Canada (Minister of Citizenship & Immi- gration), 2009 FC 767 (F.C.) at paras 48-54.

Finding That the Crime Was Serious Was Reasonable 54 The Respondent argues that the Board’s credibility finding is determinative of the Applicant’s claim. The Federal Court of Appeal has recognized that the RPD is a specialized tribunal with complete jurisdiction to determine the plausibility of testimony. Assessments of the credibility of evidence are findings of fact for which the Board is entitled to a high level of deference: Aguebor, above; Saha v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. No. 1117 (F.C.) at para 23; Razzagh v. Canada (Minister of Citizenship & Immigration), [2004] F.C.J. No. 918 (F.C.) at para 2. The Board’s assessment of the seriousness of the crime was reasonable based on all of the evidence presented. 55 When assessing the seriousness of a crime, the Respondent argues, there is a presumption that an offence is a “serious crime” if it would be punishable by a term of imprisonment of at least ten years if it had been committed in Canada: Jayasekara, above, at para 40; Chan v. Canada (Minister of Citizenship & Immigration), [2000] 4 F.C. 390 (Fed. C.A.); Xie, above, at para 40. In this case, the Applicant’s crime, if committed in Canada, would have been punishable as breaking and entering contrary to s. 348 of the Criminal Code, which is an indictable offence liable 312 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

to a maximum penalty of life imprisonment. As such, there is a presumption that this crime was serious. 56 However, the Board properly recognized that this presumption can be rebutted by other factors, and considered the “Jayasekara factors” in addition to the international and domestic view of the seriousness of the crime. The Board’s credibility finding and assessment of the seriousness of the crime were reasonable and the reasons demonstrate justification, transparency and intelligibility within the decision-making process.

Applicant’s Reply and Further Submissions Issue Estoppel 57 The Applicant says that he is not arguing that the Minister was precluded from intervening before the RPD on the issue of exclusion. Rather, since the issue of what facts were established based on the documents and the Applicant’s testimony had already been finally decided by the ID, the Minister was bound to concede those facts. He was bound by law to accept the ID’s findings rather than re-litigate them to get a better result. This is precisely the situation which the principle of res judicata exists to prevent. 58 The Applicant says the cases relied upon by the Respondent on this issue are not applicable. Feimi, above, concerned arguments about cause of action estoppel, not issue estoppel. Ganem, above, concerned the decision of the RPD, not the conduct of the Minister, who was a party to both the ID and RPD proceedings in this matter. 59 The Applicant also disagrees with the view that bad faith on the part of the Minister must be proven to establish an abuse of process. Apart from Blencoe, above, the case law cited by the Respondent relates to the exercise of prosecutorial discretion, which is only reviewable in select circumstances. Blencoe establishes that, in the administrative law context, abuse of process can be found for reasons other than the bad faith of a party, where a denial of natural justice or obvious prejudice would occur. 60 The Applicant argues that the present situation is very similar to that addressed in Thambiturai, above.

Unreasonable Findings 61 The Applicant does not dispute the legal principles set out by the Re- spondent, but disagrees that they were properly applied in this case. In Galindo Vasquez v. Canada (MCI) James Russell J. 313

particular, while the Board is allowed in appropriate circumstances to base its conclusions on a foreign indictment, the Applicant is similarly entitled to refute the allegations. Any defences to the charge must be properly considered: Ramirez, above, at para 311. 62 The question of whether the Applicant committed the offence of burglary abroad is more than an issue of credibility. The Board has a statutory duty to conclude that the person committed an offence, albeit on a low standard of proof. This means that, where there is no foreign conviction, the Board must perform at least some analysis of the foreign legal framework and explain how the foreign law applies to the facts, in order to conclude that the foreign charges are accurate and the offence has been committed. 63 In this case, the Board did not acknowledge that in order to make out the offence of burglary in law, the intention must be present at the time of entry. It appears that the Board concluded that just because the Appli- cant subsequently formed the intent to commit theft, he had the requisite intent for burglary and therefore found that the Applicant was not credible in denying intent at the time of entry. 64 Contrary to the Respondent’s assertion that the police report contra- dicted the Applicant’s testimony, the Applicant argues that the police and court documents did not in any way contradict his testimony. He did not deny the charges existed, but testified that he had a valid defence. The mere existence of the charges does not undermine his credibility, and it was unreasonable for the Board to find that it had a mutually exclusive choice between the credibility of the US documents and that of the Applicant. 65 Even if the worst case scenario could be established in the case, the Applicant argues, the offence cannot be considered “serious” within the meaning of Article 1F(b). The Refugee Convention is a human rights instrument, and the exclusion articles are narrowly interpreted. The purpose informing Articles 1F(a) and 1F(c) is to “exclude those individuals responsible for serious, sustained or systematic violations of human rights which amount to persecution”: Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982 (S.C.C.) at paras 63-64; Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2013 SCC 40 (S.C.C.). This suggests that only the perpetrators of the gravest non-political crimes, who profoundly violate the human rights of others, are to be punished by exclusion from refugee 314 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

protection under Article 1F(b). This is not that case, the Applicant argues.

The Impact of Febles 66 The Applicant notes that the Supreme Court heard arguments in the case of Febles v. Canada (Minister of Citizenship and Immigration), SCC Docket No 35215 [Febles] on March 25, 2014. The scope and proper interpretation of Article 1F(b) are at issue in that case, and the Applicant argues that Febles will likely change the law in this area. He asks the Court to consider certain propositions put forward by the appellant and intervenors in Febles as being correct principles of law, including that: • Article 1F(b) should apply only to exclude the perpetrators of grave non-political crimes such as capital crimes and crimes against “physical integrity, life and liberty”; • The standard of proof “serious reasons to believe” is lower than the criminal standard of beyond a reasonable doubt but higher than the civil standard of balance of probabilities; • It is overbroad and contrary to treaty interpretation principles to presume that crimes that have a maximum sentence of 10 years or more when prosecuted by indictment are “serious.” Rather, serious crimes are those that would actually be punished by an appre- ciable number of years of incarceration. The Board should look at the facts of the case rather than theoretical maximums; • The exclusion provisions of the Refugee Convention should be interpreted narrowly, and applied only when the integrity of the purpose of the Convention is called into question by inclusion. Both inclusion and exclusion should be considered, and the seriousness of the claimant’s conduct should be weighed against the consequences of exclusion; and • Even claimants who have committed serious non-political crimes in the past should not be excluded when inclusion would not undermine the purposes of the Refugee Convention.

Analysis 67 One of the central findings of the Decision occurs at paragraph 28: I therefore find that the claimant broke into his neighbour’s house with the intention of stealing anything of value that he might encoun- Galindo Vasquez v. Canada (MCI) James Russell J. 315

ter therein and that he did steal various items of a value of approximately $5,000 USD. 68 The evidentiary basis for this finding is difficult to discern, either in the Decision itself or in the record. 69 I find the Board’s conclusions about the discrepancies between the Applicant’s PIF narrative and his oral testimony reasonable: I have carefully examined the evidence and strongly prefer the Min- ister’s evidence over that of the claimant for the following reasons. The claimant failed to document in his PIF narrative that he entered the house. I do not accept as credible that, at the time he prepared his PIF, he had forgotten he had entered the house but did remember taking a key from an old vehicle. If there was not evidence to the contrary any reasonable person reading this PIF narrative would conclude that the claimant’s only action was to take a key from an old vehicle. It is more likely that the claimant was trying to hide from the reader that he entered the house. This Panel is not in a position to assess why the claimant would have admitted to entering the house at the Immigration Division hearing but there is insufficient credible evidence before me to conclude that this admission was made because the claimant had suddenly remembered it. 70 However, this finding does not provide a basis for the Board’s conclusion that the Applicant broke into the house “with the intention of stealing anything of value....” It is clear that he broke into the house, but the Board still needs to provide an evidentiary basis for his intent at the time of the break-in. The Board attempts to do this with the following reasoning: The police report is very specific about what had occurred. It is the job of the police in a democratic country like the U.S. to impartially investigate incidents and I have no reason to believe that his was not done in the matter before me. There is insufficient credible evidence before me to conclude the police fabricated evidence or did not properly document the incident involving the claimant. The police report is corroborated by the charges laid by the State Attorney. The U.S. is a highly democratic country and I find that criminal charges would not be laid if there was not evidence to support them. The claimant stated that all he was guilty of was taking a key out of the ignition of an old car and taking two ceramic dogs from the house. If this were true then he would not have been charged with Grand Theft Third Degree ($300 - $5,000). The value of a key and two ceramic dogs would be far less than $300. 316 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

I find the claimant’s evidence not to be credible and therefore place little weight on it and place considerably more weight on the evidence contained in the police report and in Officer Clarke’s declaration regarding what Mr. Knowles had to say about the break in of his aunt’s house. I find it implausible that the claimant would face the charges he did if what he stated was true. 71 As I read these paragraphs, the Board’s rationale for finding the requisite “intention of stealing anything of value” is that the Police Report is “specific” in this regard and this evidence is corroborated by the State Attorney who laid the charges. It is important to remember that the Ap- plicant never faced trial and was deported from the US, so we do not know what evidence he would have adduced to meet the charges and, in particular, what his evidence would have been on the issue of intent. 72 The Police Report, which appears at page 185 of the CTR, says, in relevant part, that the Applicant: (a) Forced entry into the unoccupied dwelling; (b) He removed property estimated at “$500C”; (c) He took the property to his residence; (d) He later expressed remorse about what he had done and “admitted that the entered the complainant’s house without permission, and took property from it to his own house.” 73 None of this supports a finding that the Applicant broke into the house “with the intention of stealing anything of value that he might encounter.” The Applicant himself provided evidence of his intent upon entry and, although I accept the Board’s conclusions in paragraph 24 that “[i]t is more likely that the claimant was trying to hide from the reader that he entered the house,” this does not decide the crucial issue of his “intent” in entering the house. 74 The bringing of charges by the State Attorney corroborates very little. There would obviously be a possibility that the Applicant had entered with the requisite intent, but this would have to be proved at trial and we simply don’t know whether that would have been possible, or how the Court would have received the Applicant’s version of events and intent if he had chosen to testify in his own defence. 75 The Police Report, and the bringing of charges by the State Attorney, do not refute the Applicant’s account of his “intent” on entering the house because they provide no evidence of that intent. Galindo Vasquez v. Canada (MCI) James Russell J. 317

76 The Police Report is also unclear on the value of the property that was taken by the Applicant. “$500C” is not necessarily “$5,000,” and the Board doesn’t say why it decided it was, except by reference to the charge of “Grand Theft Third Degree ($300 - $5000).” All this means is that the value of the property taken fell within the range; not that it was $5,000. The Board is obviously implying that the Applicant must have taken more than the “two ceramic dogs” if he was charged with this offence. But this does tell us that “he did steal various items of a value of approximately $5,000 USD.” We just don’t know what the Board is re- ferring to here or how it reached a $5,000 USD value, unless it is relying upon the figure contained in the Police Report which is just not clear. The Board’s reasoning on this issue is circular. It interprets the figure as “$5,000” because “the Applicant would not have been charged with a $300 - $5,000 offence.” 77 There were many credibility issues at play in the proceeding before the Board, and the Board cannot be faulted for its suspicions about the Applicant’s PIF omissions, but it still had to decide whether there were reasonable grounds to support the requisite “intent” or entry for burglary under the laws of the State of Florida, and the Board has failed to do so in any way that could be called reasonable. 78 The Board is also swayed in its deliberations by the declaration of the CBSA Officer, Adam Clarke, and his dealings with Robert Earl Knowles: The Minister also submitted a declaration from Canada Border Ser- vices Officer Adam Clarke. Officer Clarke contacted Robert Earl Knowles Sr. Mr. Knowles advised that the house that was broken (sic) belonged to his aunt who had passed away. He was advised of the break and enter by the police on the day that it occurred. He was told by the police that a group of individuals who were renting the house next door broke into the house through a back window and stole a large amount of property. He observed the extent of the theft but had nothing further to do with the incident. He was advised by the police that the culprits had been removed from the U.S. Mr. Knowles advised that the stolen items included a couple hundred ceramic dogs, a vacuum cleaner, vases and a number of other items that he cannot specifically remember. Although Officer Clarke’s declaration is silent on the particulars regarding the status of the house the charges filed by the State Attorney state that the property was that of Robert Knowles and/or the Estate of Emily Hazel. I conclude from this that the owner of the house was 318 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Emily Hazel and that she had died and Robert Knowles was her Executor. 79 It isn’t clear what this evidence goes to. The Board doesn’t say whether it thinks the Applicant broke into the house through a back window and stole a large amount of property, or whether it thinks the Appli- cant stole “a couple of hundred ceramic dogs.” Perhaps this is simply about ownership of the house. But it is noticeable that there are significant differences between the Police Report heavily relied upon by the Board for what happened and the evidence of what happened as relayed by the CBSA Officer after his conversation with Mr. Knowles. This required the Board to clarify its findings as to what it accepted as evidence to support serious grounds. 80 The Applicant raises many issues and I do not accept all of them as reviewable errors. However, the principal concern for the Court is the Board’s failure, in its “serious reasons for considering” analysis to provide an evidentiary basis for its crucial finding at paragraph 28 that, in breaking into the house, the Applicant’s intent was to steal “anything of value that he might encounter therein and that he did steal various items of a value of approximately $5,000 USD.” It is not enough to say that the Applicant was charged with the offences, and the Police Report provides no evidence of intent that would allow a finding of burglary as opposed to, say, trespass. On this ground alone, this matter should be retuned for reconsideration. 81 Applicant’s counsel has suggested the following questions for certification: Has the Supreme Court of Canada decision Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 overtaken prior jurisprudence and established that, under s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and article 1F of the Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954, the evidentiary standard of “serious reasons for considering” that a refugee claimant has committed or been guilty of the acts set out in article 1F is equivalent to neither the criminal nor civil standard of proof, but is higher than “reasonable grounds to believe” and implies that, prior to excluding a refugee claimant from protection, a decision maker must be satisfied on at least a balance of probabilities that the refugee claimant has committed or been guilty of those acts? 82 In view of the result and my reasons these questions are not material to my decision. Galindo Vasquez v. Canada (MCI) James Russell J. 319

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a differently constituted Board. 2. There is no question for certification. Application granted. 320 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

[Indexed as: Budlakoti v. Canada (Minister of Citizenship and Immigration)] Deepan Budlakoti, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1564-13 2014 FC 855, 2014 CF 855 Michael L. Phelan J. Heard: June 16, 2014 Judgment: September 9, 2014 Immigration and citizenship –––– Citizenship — Citizenship by birth — General principles –––– Applicant was born in Canada in October 1989 to parents who had come to Canada in 1985 to work as domestic helpers to Indian High Commissioner to Canada — Parents’ employment with High Commission terminated sometime in 1989 — Applicant had Ontario birth certificate and had been issued two Canadian passports on strength of Ontario birth certificate — In December 2010, applicant was sentenced to three years in prison for weapons trafficking and cocaine importation — While in prison, Citizenship and Immi- gration Canada determined that despite his Canadian passport, applicant had never been Canadian citizen — Admissibility report was prepared, and applicant was declared inadmissible on basis of serious criminality pursuant to s. 4 of Immigration and Refugee Protection Act — Board member issued deportation order against applicant — Decision was upheld on judicial review — Applicant brought application for declaration of citizenship — Application dismissed — Current declaration proceeding constituted collateral attack on Board’s decision and “end run” on decision on judicial review — Issue of citizenship was central to those decisions, facts pleaded were same and evidence tendered was similar to this declaration proceeding — Issue of citizenship was dealt with and court ought not to revisit matter under subsequent but parallel proceeding — Evidence did not justify relief sought as applicant’s case was significantly undermined by documentary evidence and internal inconsistency which indicated parents worked at High Commission until December 1989 and included applicant on their permanent residence application in 1992, which would have been inconsistent with applicant having citizenship status — Fact that passports had been issued to applicant not determinative of citizenship. Cases considered by Michael L. Phelan J.: Al-Ghamdi v. Canada (Minister of Foreign Affairs & International Trade) (2007), 2007 CarswellNat 2819, 315 F.T.R. 1 (Eng.), 64 Imm. L.R. (3d) 67, Budlakoti v. Canada (MCI) 321

2007 CarswellNat 1452, 2007 FC 559, 2007 CF 559, [2007] F.C.J. No. 758 (F.C.) — followed Chaoulli c. Québec (Procureur général) (2005), 130 C.R.R. (2d) 99, 2005 CSC 35, 2005 SCC 35, 2005 CarswellQue 3276, 2005 CarswellQue 3277, 254 D.L.R. (4th) 577, (sub nom. Chaoulli v. Canada (Attorney General)) 53 C.H.R.R. D/1, (sub nom. Chaoulli v. Quebec (Attorney General)) 335 N.R. 25, (sub nom. Chaoulli v. Canada (Attorney General)) [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, EYB 2005-91328 (S.C.C.) — considered Lee v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 614, 2008 CarswellNat 3029, 176 C.R.R. (2d) 338, 329 F.T.R. 135 (Eng.), [2009] 1 F.C.R. 204, 2008 CarswellNat 1461, 2008 FC 614 (F.C.) — considered Pavicevic v. Canada (Attorney General) (2013), 2013 FC 997, 2013 Car- swellNat 3668, 2013 CF 997, 2013 CarswellNat 5070, 20 Imm. L.R. (4th) 37 (F.C.) — followed Solis v. Canada (Minister of Citizenship & Immigration) (2000), 74 C.R.R. (2d) 181, 2000 CarswellNat 5326, 2000 CarswellNat 539, 4 Imm. L.R. (3d) 189, 180 F.T.R. 27 (note), 254 N.R. 362, 186 D.L.R. (4th) 512, [2000] F.C.J. No. 407 (Fed. C.A.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 6 — considered s. 7 — considered Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 3(1)(a) — considered s. 3(2) — considered s. 3(2)(a) — considered s. 3(2)(b) — considered s. 5(1) — considered s. 12 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 4 — considered s. 44 — considered

APPLICATION by applicant for declaration of citizenship.

Yavar Hameed, Ahmad Ramadan, Paul Champ, Peter Stieda, for Applicant Korinda McLaine, for Respondent 322 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Michael L. Phelan J.: I. Introduction 1 This is an application for a declaration that Deepan Budlakoti [Appli- cant] is a Canadian citizen and not subject to the Immigration and Refu- gee Protection Act, SC 2001, c 27 [IRPA]. The Applicant was born in Canada in 1989 to parents who had come to Canada as employees of the High Commission of India. 2 There is a significant factual dispute between the parties as to whether the Applicant’s parents left their Indian High Commission employment before or after his birth. If the parents left this employment before his birth, then the Applicant was entitled to Canadian citizenship by virtue of his birth in Canada. Nonetheless, he has an Ontario birth certificate and has been issued two Canadian passports, presumably on the strength of the Ontario birth certificate. 3 The critical legislative provisions of the Citizenship Act, RSC 1985, c C-39, are: 3. (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977; ... (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Can- ada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Af- fairs to be equivalent to those granted to a person or persons referred to in paragraph (a). ... 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; Budlakoti v. Canada (MCI) Michael L. Phelan J. 323

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. ... 12. (1) Subject to any regulations made under paragraph 27(i), the Minister shall issue a certificate of citizenship to any citizen who has made application therefor. (2) When an application under section 5 or 5.1 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant. (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 3. (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne: a) née au Canada après le 14 février 1977; ... (2) L’alinéa (1)a) ne s’applique pas à la personne dont, au moment de la naissance, les parents n’avaient qualité ni de citoyens ni de ré- sidents permanents et dont le père ou la mère etait:´ a) agent diplomatique ou consulaire, représentant a` un autre titre ou au service au Canada d’un gouvernement etranger;´ 324 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

b) au service d’une personne mentionnée a` l’alinéa a); c) fonctionnaire ou au service, au Canada, d’une organisation in- ternationale — notamment d’une institution spécialisée des Nations Unies — bénéficiant sous le régime d’une loi fédér- ale de privilèges et immunités diplomatiques que le ministre des Affaires etrang`´ eres certifie etreˆ equivalents´ a` ceux dont jouissent les personnes visées a` l’alinéa a). ... 5. (1) Le ministre attribue la citoyenneté a` toute personne qui, à la fois: a) en fait la demande; b) est ag´ˆ ee d’au moins dix-huit ans; c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; d) a une connaissance suffisante de l’une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des respon- sabilités et avantages conférés par la citoyenneté; f) n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une déclaration du gouverneur en conseil faite en application de l’article 20. ... 12. (1) Sous réserve des règlements d’application de l’alinéa 27i), le ministre délivre un certificat de citoyenneté aux citoyens qui en font la demande. (2) Le ministre délivre un certificat de citoyenneté aux personnes dont la demande présentée au titre des articles 5 ou 5.1 ou du paragraphe 11(1) a et´´ e approuvée. (3) Le certificat délivré en application du présent article ne prend effet qu’en tant que l’interess´´ e s’est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté. Budlakoti v. Canada (MCI) Michael L. Phelan J. 325

(Court underlining)

II. Background A. Immigration Matters 4 In overview, the Applicant was sentenced to three (3) years in prison for weapons trafficking and cocaine importation in 2010. While in prison, Citizenship and Immigration Canada [CIC] determined that despite his Canadian passport, the Applicant has never been a Canadian citizen. An admissibility report was prepared and the Applicant was declared inadmissible on the basis of serious criminality pursuant to s 4 of the IRPA. 5 India has denied that the Applicant is a citizen of India or entitled to citizenship but the record on this issue is sketchy at best. 6 The Applicant was released from prison into immigration detention, which he was released from in April 2013 subject to conditions. The sub- siding paragraphs detail the particulars of the Applicant’s relevant immigration matters. 7 In 2009, the Applicant was convicted of breaking and entering and sentenced to four (4) months in jail. In 2010, the Applicant was reported inadmissible for serious criminality based on this 2009 conviction. Pro- ceedings seemed to grind to a halt when, despite CIC contending that the Applicant was not a citizen, he gave CBSA a copy of his passport. 8 On December 12, 2010, the Applicant was convicted of weapons trafficking, possession of a firearm while prohibited and of trafficking in narcotics (cocaine). He was sentenced to three (3) years in jail. 9 In May 2011, CIC provided the Applicant with an inadmissibility report, pursuant to the IRPA s 44, confirming inadmissibility due to criminality. A removal order was issued in respect of the 2009 conviction. 10 Following an admissibility hearing in October 2011, the Immigration and Refugee Board [IRB] determined on December 8, 2011 that the Ap- plicant was inadmissible due to criminality. The IRB decision focussed on the question of whether the Applicant was a Canadian citizen. 11 In the IRB proceedings, the mother claimed that while pregnant with the Applicant, she had stopped working for the High Commission. The father testified that he had left his job in June 1989, applied for a Cana- dian work visa in Boston and moved into his new employer’s home. Ad- ditionally, their new employer (Dr. Dehejia) testified that he travelled to 326 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Boston with the Applicant’s father in the summer of 1989 to regularize the father’s status. 12 The IRB member was not satisfied that the Applicant was a Canadian citizen and issued a deportation order against him [December 8, 2011 IRB decision]. 13 Importantly, on May 24, 2012, Justice Barnes dismissed an application for judicial review of the December 8, 2011 IRB decision. 14 In 2012, the Applicant received a negative PRRA decision. 15 In December 2012, the Applicant completed his sentence and was released into CBSA custody. He has been released from custody on bonds and conditions which were amended on November 1, 2013 [November 1, 2013 IRB order]. The Applicant has brought a motion for interlocutory injunction prohibiting the legal enforcement of all immigration conditions imposed under the November 1, 2013 IRB order. 16 On September 24, 2013, the Applicant filed this Notice of Applica- tion seeking a declaration of citizenship — the present matter before this Court.

B. Citizenship Declaration Matters 17 The Applicant’s problems begin with the status of his parents’ employment at the time of his birth in October 1989. The parents came to Canada in 1985 to work as domestic helpers to the Indian High Commis- sioner to Canada. That employment terminated at some point in 1989 — the exact date is hotly contested and the facts in this record are difficult to make out. 18 The parents entered Canada in 1985, as accredited domestic workers of India’s High Commission; a diplomatic note to that effect was delivered to DFAIT on September 30, 1985. 19 On August 26, 1988, another diplomatic note indicated that the parents had moved into the Indian High Commissioner’s official residence to continue their domestic work. 20 The Applicant contends that his parents quit the Indian High Com- mission in June 1989. In that regard, he relies on the same basic facts as were before the IRB. 21 The Applicant relies on the affidavit of Dr. Dehejia. In his affidavit, Dr. Dehejia admitted that he did not recall specific dates as to when the parents began working for him. Budlakoti v. Canada (MCI) Michael L. Phelan J. 327

22 The Applicant also relies on the affidavit of S.J.S. Chhatwal, a former Indian High Commissioner, whose evidence was that the parents left his employment in June 1989 but cannot otherwise remember anything from that period. The integrity of this affidavit is undermined because the 3rd page of the four-page affidavit is missing. 23 This viva voce/affidavit evidence is further undermined by several pieces of contemporary documentation: • on December 6, 1989, the Applicant’s father received an employment authorization allowing him to begin work for a new employer instead of the Indian High Commissioner; • the corresponding FOSS Note states: “Head of family and wife were both employed by the Indian High Commission until Dec/89”. The Note contains a reference to the son (this Applicant) not being a Canadian citizen; • the Applicant’s father travelled, on his Indian diplomatic passport, on December 13, 1989; • a diplomatic note from the Indian High Commission dated De- cember 21, 1989 reported that the father and mother left the service of the High Commissioner of India on December 12 and 20, 1989 respectively (Mr. Chhatwal claimed that the note is in error but this has not been confirmed by an official of the Indian government); and • on January 2, 1990, Canada revoked the parents’ diplomatic status. 24 To round out the facts, the parents filed for and ultimately obtained Canadian citizenship. In both their citizenship applications, the parents claimed their address as that of Dr. Dehejia, from October 1989 to Au- gust 1993, despite claiming elsewhere that they had started working for him in June 1989. Importantly, before filing for citizenship, the parents, in June 1992, applied for permanent resident status listing the Applicant as a dependent child. A visa and record of landing was issued for the Applicant. 25 The Applicant, having been born in Ottawa on October 17, 1989, holds an Ontario birth certificate, and had been issued a first and then a second Canadian passport. 26 The case turns on whether the Applicant’s parents were on October 17, 1989, employees in the service of a diplomatic officer in accordance with s 3(2)(b) of the Citizenship Act, RSC 1985, c C-29. 328 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

27 The issues in this matter are: • Is the Applicant a Canadian citizen? • Has the Applicant been made stateless by some action of the Respondent? • Are the Applicant’s rights being violated under the current arrangement? • Should a declaration of citizenship be issued at this time? The first and last issues are interrelated.

III. Analysis 28 There are three principal reasons for not granting the core relief sought — a declaration of Canadian citizenship. 29 Firstly, I have grave doubts that this Court can and should issue a bare declaration of citizenship unrelated to some other relief or proceedings. The legislative scheme leaves to the Minister or potentially a citizenship judge the task of providing the documentation of citizenship. A refusal to provide such documentation, such as a certificate of citizenship, would then be reviewable by this Court. 30 Under the current procedure, this Court is asked to declare a person a citizen; however, there is no legislation suggesting that it is the function of this Court to make such a bald declaration. One may ask rhetorically, whether such relief is open to any person desiring citizenship. 31 Secondly, this matter was already subject to a Court decision, raising the matter of issue estoppel. The December 8, 2011 IRB decision held that the IRB was not satisfied that the Applicant was a Canadian citizen. That decision was upheld by Justice Barnes on May 24, 2012. 32 This declaration proceeding is a collateral attack on the December 8, 2011 IRB decision and an “end run” on Justice Barnes’ decision on judicial review. The issue of citizenship was central to those decisions; the facts pleaded were the same and the evidence tendered was much the same as in this declaration proceeding. 33 In my view, the issue of citizenship has been dealt with and this Court ought not to revisit the matter under a subsequent but parallel proceeding. 34 Thirdly, the evidence in this case does not justify the relief sought. It might have been preferable if this case had been converted to an action (where credibility can be better tested) but the Court must deal with the Budlakoti v. Canada (MCI) Michael L. Phelan J. 329

evidence as presented. The record does not establish the Applicant’s claim to citizenship by reason of birth in Canada. 35 The Applicant’s case is significantly undermined by the documentary evidence and the internal inconsistency in its own records including: • the Applicant’s father did not receive an employment authorization permitting work outside the High Commission until Decem- ber 13, 1989; • The FOSS Notes confirming that the father worked at the Indian High Commission until December 1989 and the Applicant’s status as a non-Canadian citizen; • the Indian High Commission diplomatic note confirming that the parents ceased to work there after December 12 and 20, 1989 respectively; • the father’s travels under a diplomatic passport up to December 13, 1989; • the parents’ permanent resident application of 1992, which included the Applicant as part of the request — a matter inconsistent with a claim of Canadian citizenship; and • the inconsistency between the parents’ claim that they had left the High Commission employment in June 1989 and began work for a new employer, and the citizenship application that they lived at the new employer’s house in October 1989. At the very least, the inconsistency undermines the main story-line. 36 The affidavit evidence suffers from being based on the recollection of events 25 years ago; specifically, by the refusals to answer specifics from that period. 37 The Court prefers the documentary evidence to that of the recollec- tions of Mr. Chhatwal and Dr. Dehejia because the documentary evidence was made at the relevant time and is more consistent with other related evidence. 38 The Court has credibility concerns about the evidence relied on by the Applicant, both because of the inconsistencies and contradictions caused by the 25 year time lapse therein and the witnesses’ responses when challenged. 39 The fact that passports were issued to the Applicant is not, in this case, determinative of citizenship. I adopt the reasoning of Justice Strick- land in Pavicevic v. Canada (Attorney General), 2013 FC 997, 20 Imm. 330 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

L.R. (4th) 37 (F.C.), holding that issue estoppel does not arise in the case of a passport issued in error. 40 On the issue of whether the Respondent has taken any action to render the Applicant stateless, the Respondent has done nothing to deprive the Applicant of his Canadian citizenship. The Applicant’s position is based on the erroneous assumption that the Applicant initially had Ca- nadian citizenship. 41 Whether the Applicant has Indian citizenship or is entitled to Indian citizenship is not a matter which this Court can decide. At the very minimum there is no expert evidence on Indian law and the Applicant’s enti- tlements to Indian citizenship. The law relied on by the Applicant relates to revocation of citizenship and is not applicable or persuasive in these circumstances. 42 On the issue of violation of the Applicant’s rights, the Applicant claims violations of sections 6 and 7 of the Charter. 43 With respect to s 6 rights, the Applicant’s position is dependent on his being a Canadian citizen. In Solis v. Canada (Minister of Citizenship & Immigration) (2000), 186 D.L.R. (4th) 512, 96 A.C.W.S. (3d) 455 (Fed. C.A.), Justice Rothstein, then on the Court of Appeal, confirmed that for s 6 Charter rights to be engaged, the person must be a citizen. 44 Having concluded that the Applicant has not established his Canadian citizenship, there can be no violation of s 6 Charter rights. 45 With respect to s 7 Charter rights, the Applicant is entitled to rely on the protection of this provision. The Applicant argues that absent citizenship, he faces the threat of removal from the country of his birth and has been rendered stateless, in violation of his right to liberty and to security of the person including access to basic Canadian social services such as health care. 46 The Applicant, while entitled to s 7 Charter protection, has failed to establish a violation of the rights accorded by the provision. As Justice Mandamin held in Lee v. Canada (Minister of Citizenship & Immigration), 2008 FC 614, 167 A.C.W.S. (3d) 859 (F.C.), the denial of citizenship is not synonymous with deportation (where s 7 Charter rights would crystallize). Budlakoti v. Canada (MCI) Michael L. Phelan J. 331

47 Further, the denial of state funded health care does not violate s 7 of the Charter, as held in Chaoulli c. Québec (Procureur général), 2005 SCC 35 (S.C.C.), at paragraph 104: 104 The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. We are of the view that the prohibition on medical insurance in s. 15 of the Health Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospi- tal Insurance Act, R.S.Q., c. A-28 (see Appendix), violates s. 7 of the Charter because it impinges on the right to life, liberty and security of the person in an arbitrary fashion that fails to conform to the principles of fundamental justice. 48 While an Oakes test analysis is not required here, in considering the objectives of the Citizenship Act, I can do no better than to quote Justice Shore in Al-Ghamdi v. Canada (Minister of Foreign Affairs & International Trade), 2007 FC 559, 315 F.T.R. 1: [74] The objective of paragraphs 3(2)(a) and (c) of the Citizenship Act is to ensure that citizenship is not accorded to someone who is immune from almost every obligation of citizenship (e.g. paying taxes and respecting criminal law). This is manifestly an important objective. Rational connection between the measure and the objective [75] In an effort to ensure that no citizen is immune from the obligations of citizenship, denying citizenship is tightly connected to the objective. [76] The only other alternative would be not to grant immunity to the children of individuals with diplomatic status. This would violate long standing tradition in international law and interfere with the exercise of the Crown’s prerogative over international affairs. [77] It is not necessary that the government demonstrate that the means chosen is the least impairing imaginable. It is only necessary that “the law falls within a range of reasonable alternatives”. Where this is the case “the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.” (Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827.) Proportionality in respect of the restriction and the objective [78] In measuring the proportionality of the restriction and the objective, it is important to recognize paragraphs 3(2)(a) and (c) only have the effect of denying Canadian citizenship. Although Canada cannot 332 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

control sovereign foreign states and be certain that children born of every foreign diplomat will be entitled to citizenship in their home country, it is nonetheless, reasonable to assume that most would be and therefore paragraphs 3(2)(a) and (c) treat these children no differently than every other citizen born in their parents’ home country. [79] As any other foreign national, the Applicant can apply for permanent residence pursuant to the IRPA, and once the residency obligations as set out in section 5 of the Citizenship Act are met, request to become a citizen. [80] In addition, because the conditions as set out in paragraphs 3(2)(a) and (c) reflect the standards of international law, it meets the requirements of being demonstrably justified in a free and democratic society. 49 Therefore, even if there was a violation of s 7 of the Charter, the challenge would not survive an Oakes test analysis.

IV. Conclusion 50 For all these reasons, I would dismiss this application for a declaration with costs.

Judgment THIS COURT’S JUDGMENT is that the application for a declaration is dismissed with costs. Application dismissed. Makarenko v. Canada (MCI) 333

[Indexed as: Makarenko v. Canada (Minister of Citizenship and Immigration)] Rymma Makarenko, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3540-13 2014 FC 600, 2014 CF 600 Michael D. Manson J. Heard: June 19, 2014 Judgment: June 23, 2014 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Family relationship –––– Appli- cant was 81 year old unmarried citizen of Ukraine of Russian ethnicity — Ap- plicant came to Canada in 2006 to visit her son and grandchildren and remained in Canada since that time — Applicant made unsuccessful refugee claim and subsequently made humanitarian and compassionate (H and C) application based on establishment in Canada, and on ground that returning to Ukraine would be psychologically detrimental — At time of decision, applicant could not apply for sponsorship abroad owing to moratorium imposed by Citizenship and Immigration Canada, which had now been partially lifted — Officer denied application, concluding that there would be no unusual, undeserved or disproportionate hardship for applicant if she were made to apply for permanent residence from outside Canada — Applicant brought application for judicial review — Application granted — There was no analysis by officer of impact of removing applicant based on her age — Applicant was currently 81 years old, had no family in Ukraine, and according to her medical reports, suffered from memory problems, insomnia, depression, and anxiety — Officer’s failure to consider applicant’s age made other conclusions unjustifiable — Officer’s finding that applicant would make new friends and establish new social ties in Ukraine, despite having apparently no family or existing social network was unreasonable — Officer was apparently assessing undue hardship on assumption that applicant could apply for permanent residence from abroad, and it was unclear whether officer would have come to same conclusion had he been aware of fact that applicant could not, given her personal characteristics, have applied for permanent residence from abroad. 334 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

Cases considered by Michael D. Manson J.: Javaid v. Canada (Minister of Citizenship & Immigration) (1998), 1998 Car- swellNat 2353, 157 F.T.R. 233, 1998 CarswellNat 4593, [1998] F.C.J. No. 1730 (Fed. T.D.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Zapata v. Canada (Solicitor General) (1994), (sub nom. Zapata v. Canada (Minister of Employment & Immigration)) 82 F.T.R. 34, 1994 CarswellNat 391, [1994] F.C.J. No. 1303 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — referred to s. 72(1) — pursuant to

APPLICATION for judicial review of decision by officer rejecting applicant’s application for exception based on humanitarian and compassionate considerations.

Daniel Fine, for Applicant, Rymma Makarenko Judy Michaely, for Respondent, Minister of Citizenship and Immigration

Michael D. Manson J.:

1 This is an application for judicial review of the decision of N. Case, a Senior Immigration Officer at Citizenship and Immigration Canada [the Officer], pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. The Officer refused to exempt the Applicant’s permanent residence visa application from the selection criteria of the Act on humanitarian and compassionate [H&C] grounds pursuant to section 25 of the Act.

I. Issue 2 The issue in this application is whether the Officer’s decision was unreasonable. Makarenko v. Canada (MCI) Michael D. Manson J. 335

II. Background 3 The Applicant is an unmarried citizen of the Ukraine. She is an ethnic Russian and was born on March 23, 1933. She has one son, Iouri Makarenko, and two grandchildren, who were aged 10 and 25 at the time of the Officer’s decision. Her son and grandchildren live in Canada. The Applicant came to Canada in May, 2006, to visit her son and has remained in Canada since that time. 4 In her H&C application, she states that she has been subject to abuse and persecution throughout her life in the Ukraine. She claims to have lost all her savings after she invested them in a bank. In support of this contention she submitted investment certificates. 5 She also alleges to have been attacked by Ukrainian nationalists because she did not speak Ukrainian. 6 In Canada, the Applicant is supported by her son and lives alone in a rented apartment which is paid for by him. She attends church and En- glish as a second language classes. She spends time with her grandchildren and has developed several friendships in Canada as is evident from letters of support. 7 The Applicant previously applied for refugee protection. In a decision dated April 17, 2009, the Immigration and Refugee Board rejected the Applicant’s claim, finding that she was not a convention refugee or person in need of protection. 8 The Applicant also submitted two medical assessments in support of her contention that returning to the Ukraine will cause her psychological hardship. One, from Dr. Pilowsky, states that the Applicant suffers from Post Traumatic Stress Disorder and depression, and that returning the Applicant to the Ukraine would be psychologically detrimental to her. The other, by Dr. Yaroshevsky, indicates that the Applicant suffers from diabetes, depression, insomnia and has difficulty functioning. Dr. Yaroshevsky indicates that she has a patchy memory. 9 The Officer rendered a decision in the Applicant’s case on February 28, 2013. The Officer considered the Applicant’s claim based on personalized risk, establishment in Canada, and the best interests of the child. 10 With respect to risk, the Officer placed considerable weight on the negative determination of the Applicant’s prior refugee claim, drawing particular attention to its finding that she had not rebutted the presumption of state protection. The Officer acknowledged that the risk consid- 336 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

ered in the context of an H&C application is based on the degree of hardship facing the Applicant. 11 The Officer found that there was insufficient evidence to corroborate the Applicant’s statements that she experienced abuse and harassment as a result of her ethnicity and that her investments were lost. The Officer also examined country condition information relating to the Ukraine at the time of the hearing. The Officer outlined the various redress mecha- nisms available, including the government’s security, legislative and human rights frameworks. The Officer concluded that the Applicant would not face a personalized risk which would amount to an unusual, undeserved, or disproportionate hardship. 12 The Officer accepted the Applicant was somewhat established in Canada, by virtue of her apartment, friends, and attendance at church. However, the Officer noted that she had stayed in Canada without proper immigration authorization and there should have been an expectation that she would be removed to the Ukraine at some point. The Officer acknowledged that separation from her friends would be difficult, but she would still be able to contact them. Furthermore, the Officer felt she would be able to develop new friendships in the Ukraine. Cumulatively, the Officer found that her establishment in Canada was not such that returning to the Ukraine would constitute unusual, undeserved or disproportionate hardship. 13 With regard to the impact of the Applicant’s departure on her grandchildren, the Officer acknowledged that the Applicant has close ties to her grandchildren and that physical separation would be difficult. However, the Officer noted that her grandchildren live with their parents, and could maintain contact with the Applicant while abroad. 14 The Officer considered the psychological assessments, and accepted that the Applicant would face anxiety by being removed from Canada. However, the Officer determined that it would not constitute unusual, undeserved or disproportionate hardship. 15 Finally, with respect to the Applicant’s medical conditions, the Of- ficer found there was insufficient corroborative evidence that the Appli- cant would be unable to receive necessary treatment in the Ukraine, and noted that the Applicant’s submitted medical assessments were more than two years old. 16 Based on the above, the Officer found that there would be no unusual, undeserved or disproportionate hardship for the Applicant if she were made to apply for permanent residence from outside Canada. Makarenko v. Canada (MCI) Michael D. Manson J. 337

III. Standard of Review 17 The standard of review is reasonableness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at paras 47-48, 51).

IV. Analysis A. Was the Officer’s decision reasonable? 18 The Applicant argues that the Officer failed to adequately consider the reports of Dr. Yaroshevsky and Dr. Pilowsky on the basis that they were not the witnesses of the events leading to the Applicant’s medical issues (Zapata v. Canada (Solicitor General), [1994] F.C.J. No. 1303 (Fed. T.D.)). When a psychological assessment has specific and important evidence to an Applicant’s case, it should be considered (Javaid v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1730 (Fed. T.D.)). 19 The Applicant further argues that the Officer erred in stating that she could apply for permanent resident status in Canada from outside the country. She notes that the Minister of Citizenship and Immigration put a moratorium on the sponsorship of parents in December, 2011, and the Applicant does not fit under any other immigration categories. The lift- ing of the moratorium on permanent residence sponsorship applications from abroad was announced after the Officer’s decision was made. Re- gardless, given the Applicant’s advanced age and the waiting lists for permanent residence sponsorship, the Officer’s assertion would have been unreasonable. 20 The Applicant also suggests that the Officer failed to consider the cu- mulative evidence of discrimination against the Applicant. The Applicant notes documentary evidence, including the European Union Commis- sioner for Human Rights and the United States Department of State Re- port for 2011, which suggests that elderly people are underprivileged and often live in poverty, that the Ukraine’s government is corrupt and that societal discrimination against ethnic minorities persists. 21 Finally, the Applicant asserts that the Officer determined her degree of establishment in Canada without due regard to the evidence. 22 The Respondent argues that the Officer carefully considered all the evidence and that the Applicant is asking the Court to reweigh the evidence. As well, notwithstanding the Officer’s reference to the Refugee Protection Division’s decision and elements of risk determined in that 338 IMMIGRATION LAW REPORTER 27 Imm. L.R. (4th)

decision, the Officer conducted a proper hardship analysis based on all the evidence. 23 I believe that two issues were unreasonably dealt with by the Officer. Firstly, while the Applicant made submissions partially on the basis that she is an “...elderly single person” there is no analysis by the Officer of the impact of removing her based on her age. The Applicant is currently 81 years old, has no family in the Ukraine, and according to her medical reports, suffers from memory problems, insomnia, depression, and anxiety. Whether she suffers from these medical issues does not appear to be in dispute. 24 The Officer’s failure to consider the Applicant’s age made other conclusions unjustifiable. For example, the Officer concluded that the Appli- cant would make new friends and establish new social ties in the Ukraine, despite having apparently no family or existing social network. While the Officer’s analysis may be reasonable if it concerned a younger person, it is unreasonable when considered in the context of an 81-year- old woman with health issues. 25 The second aspect in which this decision is unreasonable is demonstrated by the Officer’s conclusion that: I find the applicant has not established that her personal circumstances are such that the hardships associated with having to apply for permanent residence in the normal manner are in isolation to the hardships associated faced by others who are required to apply for permanent residence from abroad. 26 The Applicant is correct that at the time of the decision, she could not apply for sponsorship abroad owing to a moratorium imposed by Citizen- ship and Immigration Canada. While the Respondent is correct in stating that this moratorium has now been partially lifted, this was not apparent at the time of the Officer’s decision. Since the Officer was apparently assessing undue hardship on an assumption that the Applicant could apply for permanent residence from abroad, it is unclear whether the Of- ficer would have come to the same conclusion had they been aware of the fact that the Applicant could not, given her personal characteristics, have applied for permanent residence from abroad. While alone this error would not render the decision unreasonable, in combination with the Of- ficer’s failure to consider the Applicant’s age, and the reality of her condition and circumstances if returned to the Ukraine, I believe the decision is unreasonable. Makarenko v. Canada (MCI) Michael D. Manson J. 339

Judgment THIS COURT’S JUDGMENT is that 1. The Applicant’s application is allowed and referred back to a different Officer for reconsideration; 2. There is no question for certification. Application granted.