IMM‑184‑06
2006 FC 1134
Neila Rosa Velasquez Guzman (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Guzman v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Noël J.—Vancouver, August 29; Ottawa, September 28, 2006.
Citizenship and Immigration — Status in Canada — Permanent Residents — Sponsorship — Judicial review of decision rejecting application for sponsorship on basis applicant in receipt of social assistance for reason other than disability contrary to Immigration and Refugee Protection Regulations, s. 133(1)(k) — S. 133(1)(k) not violating Canadian Charter of Rights and Freedoms, s. 15(1) as receipt of social assistance not personal characteristic — Regulations, s. 133(1)(k) not substantively discriminating, but result of legislator's attempt to balance importance of unification of sponsors with immediate family with goal of pursuing economic benefits deriving from immigration — Other mechanisms available for sponsors on social assistance to obtain relief from sponsorship bar — Application dismissed.
Constitutional Law — Charter of Rights — Equality Rights — Whether Immigration and Refugee Protection Regulations, s. 133(1)(k), barring approval of sponsorship application if sponsor in receipt of social assistance for reason other than disability, violating Charter, s. 15 — Receipt of social assistance herein not personal characteristic as not essential quality constituting recognizable part of applicant's person, not appearing to be permanent, immutable — Presumption those on social assistance not capable of providing for sponsored family members informed general assumption by legislator not based on arbitrary, demeaning stereotypes — Fact legislative scheme providing for other ways to reunite families further supporting conclusion s. 15 not violated in case at bar — Question certified as to whether Regulations, s. 133(1)(k) violating s. 15 on basis of analogous ground of receipt of social assistance.
This was an application for judicial review of a decision rejecting the applicant's application to sponsor her husband on the ground that during the processing of that application, she was in receipt of social assistance for a reason other than disability contrary to paragraph 133(1)(k) of the Immigration and Refugee Protection Regulations.
The issue was whether paragraph 133(1)(k) of the Regulations violates subsection 15(1) of the Canadian Charter of Rights and Freedoms in that it discriminates on the basis of receipt of social assistance.
Held, the application should be dismissed.
The receipt of social assistance in the particular circumstances of the applicant did not constitute a personal characteristic under the first prong of the Law v. Canada (Minister of Employment and Immigration) test for analysing section 15 Charter claims. It was not an essential quality that constituted a recognizable part of her person, nor did it appear to be permanent or immutable. The matter could therefore be distinguished from the situation in Falkiner v. Ontario (Ministry of Community and Social Services) (Ont. C.A.). In that case, the individuals concerned had a long history of receipt of social assistance combined with other factors, and the Court found that the impugned provision discriminated not only on the ground of receipt of social assistance (as in this case), but also on the grounds of sex and marital status.
Receipt of social assistance is not an enumerated ground of discrimination under subsection 15(1) of the Charter. Nor is it an analogous ground as there was no indication that the applicant would be dependent on social assistance.
As to the third prong of the Law test, this differential treatment did not discriminate in a substantive sense. By enacting paragraph 133(1)(k) of the Regulations, the legislator tried to balance the great importance of the unification of sponsors with their immediate family with the goal of pursuing the economic benefits that derive from immigration. The presumption that those on social assistance cannot provide for any person they may sponsor without resorting to the State for assistance is an informed general assumption made by the legislator that is not based on arbitrary and demeaning stereotypes and as such does not run afoul of section 15. Furthermore, the legislator has provided mechanisms (i.e. humanitarian and compassionate application under section 25 of the Immigration and Refugee Protection Act) whereby sponsors on social assistance can apply for relief from the provisions of paragraph 133(1)(k) if the bar from sponsorship would operate unfairly in their particular circumstances.
Paragraph 133(1)(k) of the Regulations thus does not violate section 15 of the Charter. The question of whether paragraph 133(1)(k) discriminates on the basis of the analogous ground of receipt of social assistance was certified.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 15, 24(1).
Family Benefits Act, R.S.O. 1990, c. F.2.
Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 57 (as am by S.C. 1990, c. 8, s. 19(F); 2002, c. 8, s. 54).
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, s. 4.
Human Rights Code, R.S.B.C. 1996, c. 210, s. 10.
Human Rights Code, R.S.O. 1990, c. H.19, s. 2.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1), 25, 72 (as am. by S.C. 2002, c. 8, s. 194).
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 117(9)(d) (as am. by SOR/2004‑167, s. 41), 133(1)(k), (4) (as am. by SOR/2005‑61, s. 6).
R.R.O. 1990, Reg. 366 (Family Benefits Act), s. 1 “spouse”.
cases judicially considered
applied:
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 60 C.R.R. (2d) 1; 236 N.R. 1; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1.
distinguished:
Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481; 212 D.L.R. (4th) 633; 1 Admin. L.R. (4th) 235; 94 C.R.R. (2d) 22; 159 O.A.C. 135 (C.A.).
considered:
Donovan v. Canada, [2006] 1 C.T.C. 2041; 2005 DTC 1531; 2005 TCC 667; Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287; 155 D.L.R. (4th) 193; 49 C.C.E.L. (2d) 5; 48 C.R.R. (2d) 211; 98 CLLC 220‑012 (Gen. Div.); affd (1999), 182 D.L.R. (4th) 471; 49 C.C.E.L. (2d) 29 (Ont. C.A.); revd [2001] 3 S.C.R. 1016; (2001), 207 D.L.R. (4th) 193; 13 C.C.E.L. (3d) 1; 89 C.R.R. (2d) 189; [2002] CLLC 220‑004; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94; Bailey v. Canada (2005), 248 D.L.R. (4th) 401; 126 C.R.R. (2d) 178; [2005] 1 C.T.C. 353; 2005 DTC 5092; 331 N.R. 186; 2005 FCA 25; M. v. H., [1999] 2 S.C.R. 3; (1999), 171 D.L.R. (4th) 577; 62 C.R.R. (2d) 1; 238 N.R. 179; 121 O.A.C. 1; 46 R.F.L. (4th) 32; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; [1998] 1 W.W.R. 50; 38 B.C.L.R. (3d) 1; 96 B.C.A.C. 81; 218 N.R. 161; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; (1999), 175 D.L.R. (4th) 193; 124 B.C.A.C. 1; 135 C.C.C. (3d) 129; 25 C.R. (5th) 1; 63 C.R.R. (2d) 189; 241 N.R. 1; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Lovelace v. Ontario, [2000] 1 S.C.R. 950; (2000), 188 D.L.R. (4th) 193; [2000] 4 C.N.L.R. 145; 75 C.R.R. (2d) 189; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429; (2002), 221 D.L.R. (4th) 257; 100 C.R.R. (2d) 1; 298 N.R. 1; 2002 SCC 84; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; C.E.B. & P.G.R. 8216; 95 CLLC 210‑025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655; (2005), 262 D.L.R. (4th) 13; 42 Admin. L.R. (4th) 234; 137 Imm. L.R. (3d) 20; 51 Imm. L.R. (3d) 17; 345 N.R. 73; 2005 FCA 436.
authors cited
British Columbia. Ministry of Employment and Income Assistance. Your Guide to Employment and Assistance, online: <http://www.mhr.gov.bc.ca/publicat/bcea/ BCEA.htm>.
Citizenship and Immigration Canada. Inland Processing Manual (IP). Chapter IP 2: Processing Applications to Sponsor Members of the Family Class, online: <http://www.cic.gc.ca/manuals‑guides/english/ip/ip02e.pdf>.
Nouveau Petit Robert: dictionnaire alphabétique et analogique de la langue française. Paris: Dictionnaires Le Robert, 1996, “caractéristique”, “personnel”.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “characteristic”, “personal”.
APPLICATION for judicial review of the decision dismissing the applicant's sponsorship application under paragraph 133(1)(k) of the Immigration and Refugee Protection Regulations, which requires that a sponsor not be in receipt of social assistance for a reason other than disability. Application dismissed.
appearances:
Dominique Roelants for applicant.
Sandra E. Weafer for respondent.
solicitors of record:
Dominique Roelants, Nanaimo, British Columbia, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1]Noël J.: This is an application for judicial review pursuant to section 72 [as am. by S.C. 2002, c. 8, s. 194] of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) as amended, of a December 22, 2005 decision of the Minister of Citizenship and Immigration (respondent) rejecting the applicant’s sponsorship application under paragraph 133(1)(k) of the Immigration and Refugee Protection Regulations, SOR/2002‑227 (IRPR) as the applicant, during the processing of the sponsorship application, was a recipient of social assistance for a reason other than disability. The applicant is seeking the quashing of paragraph 133(1)(k) of the IRPR on the basis that it violates section 15 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], and is not justifiable under section 1 of the Charter. In accordance with section 57 [as am. by S.C. 1990, c. 8, s. 19(F); 2002, c. 8, s. 54] of the Federal Courts Act, R.S.C., 1985, c. F‑7 [s. 1 (as am. idem, s. 14)], the Attorney General of Canada and the attorney generals of the provinces have been notified that a constitutional question would be raised before the Court.
I. Background and Facts
[2]Neila Rosa Velasquez Guzman (applicant) is from Colombia. In 2000, at the age of 14, the applicant and her family came to Canada as refugee claimants. In 2003, the applicant and her close family became permanent residents of Canada.
[3]On January 1, 2003 the applicant became romantically involved with Mr. Hernan Cosma. Mr. Cosma, an Argentinean citizen, arrived in Canada in 2002 at 19 years of age, and applied for refugee status on August 1, 2002. In 2002, he applied for a temporary work permit, which was granted and permitted him to work between December 2002 and January 2004. During the entire validity of the work permit Mr. Cosma was gainfully employed in Montréal.
[4]In February 2003, the applicant and Mr. Cosma moved in together. Beginning in February 2003 until the expiration of his work permit, Mr. Cosma supported the applicant and himself on his income.
[5]In September 2003, Mr. Cosma’s refugee claim was rejected. Two months later, on November 15, 2003, he and the applicant were married in Montréal. At the time of their marriage, the applicant was 16 years of age and Mr. Cosma was 21 years of age. One month later in December 2003, their daughter was born in Montréal. The next month, in January 2004, Mr. Cosma’s temporary work visa expired. In August 2004, the applicant and Mr. Cosma moved to Victoria, British Columbia. In November 2004, the applicant began receiving social assistance, which has remained her only source of revenue. Moreover, the Tribunal’s record indicates that Mr. Cosma also began receiving social assistance in November 2004 (see Tribunal record, at page 4).
[6]In April 2005, the applicant applied to sponsor Mr. Cosma, as a member of the family class. On December 22, 2005, the applicant was advised that her sponsorship of Mr. Cosma was denied on the basis of paragraph 133(1)(k) of the IRPR, which states:
133. (1) A sponsorship application shall be approved by an officer, if, on the day of the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
. . .
(k) is not in receipt of social assistance for a reason other than disability.
Thus, the applicant’s sponsorship application was rejected as the applicant was in receipt of social assistance for a reason other than disability from the date the sponsorship application was made until the day a decision with respect to the application was made.
II. Issues
(1) Does paragraph 133(1)(k) of the IRPR violate subsection 15(1) of the Charter in that it discriminates on the basis of receipt of social assistance?
(2) If paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter can this violation be saved by section 1 of the Charter?
(3) If paragraph 133(1)(k) of the IRPR is not justifiable under section 1 of the Charter should paragraph 133(1)(k) of the IRPR be declared ultra vires and of no force or effect pursuant to subsection 24(1) of the Charter?
III. Analysis
(1) Does paragraph 133(1)(k) of the IRPR violate subsection 15(1) of the Charter in that it discriminates on the basis of receipt of social assistance?
[7]Subsection 15(1) of the Charter states the following:
15. (1) Every individual is equal before and under the law and has the right to 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.
[8]In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at paragraph 51, the Supreme Court stated that the purpose of subsection 15(1) is:
. . . to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
[9]The Supreme Court in Law then went on to establish a three‑step framework for analysing a claim of discrimination under subsection 15(1) of the Charter. The framework set out in Law is the following (at paragraph 39):
First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?
[10]The applicant in the case at hand claims that paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter as but for such paragraph the applicant would be entitled to sponsor her spouse. She claims that paragraph 133(1)(k) is discriminatory as it prevents those on social assistance from being able to sponsor a relative they would otherwise be qualified to sponsor. To effectively address this argument, the Law three‑step framework must be used to analyse the discrimination claim.
(a) Does paragraph 133(1)(k) draw a formal distinction between the claimant and others on the basis of personal characteristics?
[11]Paragraph 133(1)(k) makes a distinction between those who are and those who are not in receipt of social assistance.
[12]Although a distinction is made between those who are and those who are not in receipt of social assistance, the question is whether receipt of social assistance is to be considered a personal characteristic, a necessary condition of the first prong of the Law test.
[13]The respondent lists a multitude of cases in which it was found that income, poverty and economic status are not characteristics that attach to the individual, including Donovan v. Canada, [2006] 1 C.T.C. 2041 (T.C.C.), at paragraph 18 (the amount of a child support payment is a question of economic status which is not an immutable personal characteristic); Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287 (Gen. Div.); affd (1999), 182 D.L.R. (4th) 471 (Ont. C.A.); revd [2001] 3 S.C.R. 1016 (reversed on other grounds) (working in a particular economic sector, namely as an agricultural worker, is not a personal characteristic); Bailey v. Canada (2005), 248 D.L.R. (4th) 401 (F.C.A.), at paragraph 12 (income level is not to be considered a personal characteristic). The respondent claims, that by analogy, receipt of social assistance should not be considered a personal characteristic.
[14]This being said, Justice Laskin writing for the Court of Appeal for Ontario in Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481 (C.A.), recognized that discrimination on the basis of social assistance could amount to discrimination under section 15.
[15]Inherent in finding that discrimination on the basis of social assistance is a violation of section 15 of the Charter, as was found in Falkiner, is that receipt of social assistance must be considered a personal characteristic under the first prong of the Law test. The question that is raised is, notwithstanding the findings in Falkiner, can the applicant’s receipt of social assistance, taking into consideration the particular facts of the case, be considered a personal characteristic as is required under the Law test? I believe that this question must be answered in the negative. In the particular circumstances of this case, the applicant’s receipt of social assistance cannot be considered a personal characteristic under section 15 of the Charter as the particular facts in this case distinguish it from the situation in Falkiner.
[16]To conduct an effective analysis of the distinguishing features between the two cases, an in‑depth analysis of what is meant by the term “personal characteristic” under the first prong of the Law test is required. The jurisprudence giving meaning to what is meant by “personal characteristic” under the first prong of the Law test is limited, as in most situations determining whether a formal distinction is on the basis of a personal characteristic is straightforward. For instance, in the case of M. v. H., [1999] 2 S.C.R. 3, at paragraphs 61‑62, the Supreme Court limited its analysis of the first prong of the Law test to the following:
Section 29 defines “spouse” as “either of a man and woman” who meet the other requirements of the section. It follows that the definition could not have been meant to define a couple. Rather it explicitly refers to the individual members of the couple. Thus the distinction of relevance must be between individual persons in a same‑sex, conjugal relationship of some permanence and individual persons in an opposite‑sex, conjugal relationship of some permanence.
Thus it is apparent that the legislation has drawn a formal distinction between the claimant and others, based on personal characteristics. As stated in Law, supra, the first broad inquiry in the s. 15(1) analysis determines whether there is differential treatment. . . .
The Supreme Court’s analysis of the first prong of the Law test was even more limited in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at paragraph 59:
There is no question that the distinction here is based on a personal characteristic that is irrelevant to the functional values underlying the health care system. Those values consist of the promotion of health and the prevention and treatment of illness and disease, and the realization of those values through the vehicle of a publicly funded health care system. There could be no personal characteristic less relevant to these values than an individual’s physical disability.
In Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at paragraph 4, the first prong of the Law test analysis was even more succinct:
The first step is to determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden. The Indian Act’s exclusion of off‑reserve band members from voting privileges on band governance satisfies this requirement.
As Justice McLachlin (as she then was) said writing for the majority in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paragraph 78:
The first requirement of s. 15(1), differential treatment on the basis of a personal characteristic, is not usually difficult to establish: Egan v. Canada, [1995] 2 S.C.R. 513, at p. 531, per La Forest J.
[17]This being said, there have been a few cases that have pronounced that immutability, or at least permanency of some degree, is an essential attribute of a “personal characteristic.” In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 195, Justice La Forest found citizenship to be a personal characteristic because:
The characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable. Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs. [My emphasis.]
In Corbiere, in discussing the analysis to be undertaken under the second prong of the Law test, Justices McLachlin (as she then was) and Bastarache writing for the majority of the Supreme Court, state (at paragraph 13):
It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. [My emphasis.]
[18]I feel that notwithstanding what has been said in the case law as to what is meant by the term “personal characteristic” (caractéristique personnelle in French), it is important to effectively define the term so that a determination as to whether receipt of social assistance in the particular circumstance of the applicant is a personal characteristic. The Oxford English Dictionary defines the term “personal” as meaning “Of, pertaining to, concerning, or affecting the individual person or self (as opposed, variously, to other persons, the general community, etc., or to one’s office rank, or other attributes); individual; private; one’s own” (The Oxford English Dictionary, 2nd ed., 1989, “personal”). Whereas the word “characteristic”, in the same dictionary, is stated to mean “That serves to indicate the essential quality or nature of persons or things, displaying character, distinctive, typical” (The Oxford English Dictionary, 2nd ed., 1989, “characteristic”). For its part, Le Nouveau Petit Robert defines the term “personnel” as meaning “[q]ui concerne une personne, lui appartient en propre” (Le Nouveau Petit Robert, 1996, “personnel”) and the word “caractéristique” as meaning “[q]ui constitue un élément distinctif reconnaissable” (Le Nouveau Petit Robert, 1996, “caractéristique”).
[19]Taking into account the plain meaning definition of “personal characteristic” (“caractéristique personnelle” in French) as per The Oxford English Dictionary and Le Nouveau Petit Robert and that the case law establishes that permanency or immutability is an essential feature of a personal characteristic, it is impossible for me, given the particular facts in the case, to find that receipt of social assistance is a personal characteristic of the applicant. The applicant is 19 years old. She has stated in her affidavit that she is on social assistance because she does not speak English well enough to allow her to work in Canada (applicant’s record, applicant’s affidavit, page 13, paragraphs 9 and 13). The applicant, however, also states in her affidavit that she has been studying English at Camosun College in Victoria since January 2005 (applicant’s record, applicant’s affidavit, page 13, paragraph 8). Given the applicant’s young age, and the fact that she is studying English indicates that she wishes to be able to work in Canada and thus get off social assistance. Consequently, the applicant’s receipt of social assistance cannot be considered a personal characteristic as receipt of social assistance is not an essential quality that constitutes a recognizable and distinctive part of her person as the dictionary definition demands nor does receipt of social assistance appear to be permanent or immutable in the case of the applicant as the case law requires. In reality, the applicant’s receipt of social assistance appears to be nothing more than a stage in her process of becoming established in Canada that she began upon becoming a permanent resident in April 2003.
[20]Moreover, another indicator that receipt of social assistance cannot be considered a personal characteristic is that by its very focus social assistance is designed to assist people temporarily so that they may become self‑sufficient. In principle, being on social assistance is not a societal objective or a way of life, but rather was developed to aid individuals in becoming financially independent. The British Columbia Ministry of Employment and Income Assistance, the Ministry responsible for social assistance in British Columbia, states in their publication Your Guide to Employment and Assistance (British Columbia Ministry of Employment and Income Assistance, February 2006):
BC Employment and Assistance is an income‑ and asset‑tested program intended to assist people temporarily while they find work, and to assist those who are unable to fully participate in the workforce.
Personal responsibility and active participation are the key principles of BC Employment and Assistance. Employable applicants are expected to look for work before they receive assistance, and people receiving income assistance are expected to complete an Employment Plan, seek work, and participate in job placement and job training programs so they may reach their goal of self‑reliance. [My emphasis.]
This being said, there may be some situations where social assistance has a root in permanency, but this is not true of the situation described by the evidence presented by both parties in the case at hand.
[21]As stated above (see paragraph 19 of this deci-sion), there are no indicators suggesting that the applicant’s receipt of social assistance will be long term or that her recent receipt of social assistance has become an essential recognizable and distinctive quality that constitutes part of her person and thus a personal characteristic. This situation is distinguishable from Falkiner as in that case the individuals concerned had a long history of receipt of social assistance combined with other factors, which contributed to them being discriminated against. The Court of Appeal for Ontario in Falkiner found that subparagraph 1(1)(d)(iii) [of the definition of “spouse”] of Regulation 366 [R.R.O. 1990] of the Family Benefits Act, R.S.O. 1990, c. F.2, discriminated on the grounds of sex, marital status and the receipt of social assistance. In contrast to Falkiner, in the case at hand the only ground for discrimination alleged is that of receipt of social assistance, and there is no indication in the record that the applicant’s receipt of social assistance is of any permanency.
[22]I am therefore of the opinion that the applicant’s receipt of social assistance is not a personal characteristic under the first branch of the Law test. Nonetheless, I will undertake a review of the other two prongs of the Law test for the sake of completeness.
(b) Is the differential treatment under paragraph 133(1)(k) based on one or more enumerated or analogous grounds?
[23]Receipt of social assistance is not an enumerated ground under subsection 15(1) of the Charter.
[24]However, the Supreme Court in Andrews, at pages 152-153, recognized that subsection 15(1) not only protects against discrimination on enumerated grounds, but also protects against discrimination on analogous grounds.
I believe also that it is important to note that the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances. For example, Stone J. writing in 1938, was concerned with religious, national and racial minorities. In enumerating the specific grounds in s. 15, the framers of the Charter embraced these concerns in 1982 but also addressed themselves to the difficulties experienced by the disadvantaged on the grounds of ethnic origin, colour, sex, age and physical and mental disability. It can be anticipated that the discrete and insular minorities of tomorrow will include groups not recognized as such today. It is consistent with the constitutional status of s. 15 that it be interpreted with sufficient flexibility to ensure the “unremitting protection” of equality rights in the years to come.
While I have emphasized that non‑citizens are, in my view, an analogous group to those specifically enumerated in s. 15 and, as such, are entitled to the protection of the section, I agree with my colleague that it is not necessary in this case to determine what limit, if any, there is on the grounds covered by s. 15 and I do not do so.
[25]To help in determining what grounds for discrimination constitute an analogous ground, the Supreme Court provides the following guidelines in Corbiere, at paragraph 60:
An analogous ground may be shown by the fundamental nature of the characteristic: whether from the perspective of a reasonable person in the position of the claimant, it is important to their identity, personhood, or belonging. The fact that a characteristic is immutable, difficult to change, or changeable only at unacceptable personal cost may also lead to its recognition as an analogous ground: Miron v. Trudel, [1995] 2 S.C.R. 418, at para. 148; Vriend v. Alberta, [1998] 1 S.C.R. 493, at para. 90. It is also central to the analysis if those defined by the characteristic are lacking in political power, disadvantaged, or vulnerable to becoming disadvantaged or having their interests overlooked: Andrews, supra, at p. 152; Law, supra, at para. 29. Another indicator is whether the ground is included in federal and provincial human rights codes: Miron, supra, at para. 148. Other criteria, of course, may also be considered in subsequent cases, and none of the above indicators are necessary for the recognition of an analogous ground or combination of grounds: Miron, supra, at para. 149. [My emphasis.]
[26]The applicant submits that receipt of social assistance is an analogous ground for two reasons: first, those in receipt of social assistance have been recognized as in need of protection under numerous human rights legislation (Human Rights Code, R.S.B.C. 1996, c. 210, section 10; Human Rights Code, R.S.O. 1990, c. H.19, section 2; Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, section 4); and second, the Court of Appeal for Ontario in Falkiner recognized receipt of social assistance as an analogous ground in what concerned section 15 of the Charter.
[27]This being said, as stated above, the current situation can be differentiated from Falkiner (see paragraph 21 of this decision). Given the facts in this case, it cannot be found that receipt of social assistance is an immutable ground, as recognized by Corbiere, as there is no indication in the motion records that the applicant will be dependent on social assistance permanently or on a somewhat long-term basis, in fact all indicators point to the fact that she will become self‑sufficient as soon as her English improves.
(c) Does the differential treatment discriminate in a substantive sense?
[28]I would like to reiterate before continuing that as my analysis under the first two prongs of the Law test has enabled me to determine that receipt of social assistance is not a personal characteristic nor an analogous ground under section 15 of the Charter an analysis of the third prong of the Law test is not necessary. This being said, I will undertake an analysis under the third prong of the Law test so that this decision addresses the issues raised by the parties in the most comprehensive manner possible.
[29]Not all distinctions, even on an enumerated or an analogous ground amount to discrimination within the meaning of section 15 (Corbiere, at paragraph 8). Only a formal distinction on a personal characteristic which is considered an analogous ground and has a purpose or an effect that is demeaning to human dignity is discriminatory within the meaning of the Charter’s section 15 equality guarantee.
[30]In determining whether a formal distinction discriminates in a substantive sense, or in other words violates essential human dignity, the contextual factors enumerated by the Supreme Court in Lovelace v. Ontario, [2000] 1 S.C.R. 950, must be considered. These contextual factors are the following (at paragraph 68):
. . . there are four contextual factors which provide the basis for organizing the third stage of the discrimination analysis, they are: (i) pre‑existing disadvantage, stereotyping, prejudice, or vulnerability, (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity.
[31]These contextual factors must be construed and examined from the view of the reasonable person in a situation similar to that of the applicant, yet the focus of the contextual inquiry must be both subjective and objective. As the Supreme Court noted in Law, paragraph 88:
The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.
(i) Pre‑existing disadvantage, stereotyping, prejudice or vulnerability
[32]People in receipt of social assistance have been recognized as in need of protection from discrimination in the human rights legislation of various provinces, including Ontario, British Columbia and Alberta (Human Rights Code, R.S.B.C. 1996, c. 210, section 10; Human Rights Code, R.S.O. 1990, c. H.19, section 2; Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, section 4).
(ii) Correspondence
[33]In what concerns immigration the legislator has attempted to carefully balance the purposes of the IRPA, listed in subsection 3(1). The legislator by enacting paragraph 133(1)(k) of the IRPR was trying to balance the purposes listed in paragraphs 3(1)(a), c) and d) of the IRPA, namely those relating to the economic benefits of immigration and the importance of family reunification. These paragraphs state the following:
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;
(d) to see that families are reunited in Canada;
[34]Taking into account the importance of reunification with one’s spouse, common-law partner or dependent child, the legislator has tailored the IRPA so that the low income cut-off for sponsorship would not apply to the sponsorship of these family members (see subsection 133(4) [as am. by SOR/2005-61, s. 6] of the IRPR). In other words, a person with no income or assets can sponsor their spouse, common-law partner or dependent children’s immigration application as long as they undertake to provide for the basic requirements of all individuals they sponsor (see paragraph 36 of this decision for further details on this undertaking).
[35]This being said, the legislator did not determine that the economic benefits of immigration play no role in what concerns sponsorship of spouses, common-law partners and dependent children. By enacting paragraph 133(1)(k) of the IRPR the legislator tried to balance the great importance of a sponsor’s unification with their spouse, common-law partner or dependent children with the goal of pursuing the economic benefits that derive from immigration. Through the exemption of the low income cut-off (see subsection 133(4) of the IRPR) for sponsorship of spouses, common-law partners and dependent children and the existence of paragraph 133(1)(k) the legislator established that they are willing to assume that an individual will be able to support their very close family members without assistance if they are currently self‑sufficient, thereby promoting close family unification, but presumes that those in need of social assistance would not be able to support their close family as they are not able to support themselves. Moreover, the ban on sponsorship for those in receipt of social assistance was created by the legislator to particularly address the fact that the State should not have to assume the financial burden of such sponsorship.
Based on the review of documentation on file, it appears that some NGOs suggested that the Social Assistance Bar be removed altogether. This alternative was considered, but the lack of any provision which required a sponsor to support their family members if required would be unfair to Canadian taxpayers, who would have to bear the burden of Family Class immigrants who are not self‑sufficient. This alternative would not have been supported by provinces who bear the responsibility of providing social services in addition to other integration costs for those who cannot support themselves. [Respondent’s record, Christie affidavit, p. 10.]
[36]The prerequisite that one is able to support themselves before they are able to sponsor family members is reinforced by Part G of the Application to Sponsor and Undertaking Form, a form that must be filled out by all potential sponsors. Part G states that regardless of income a sponsor must undertake (Application to Sponsor and Undertaking Form, certified Tribunal record, page 19):
. . . to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada if they are not self‑supporting. I promise to provide food, clothing, shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care, eye care and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.
[37]By signing the Application to Sponsor and Undertaking Form, a sponsor accepts to support all persons they sponsor. The fact that a person is on social assistance demonstrates that they are unable to provide for their own necessities and thus it necessarily follows that they would be unable to provide for any person they sponsor.
[38]The Supreme Court stated in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 [at paragraph 56]:
The legislator is entitled to proceed on informed general assumptions without running afoul of s. 15, Law, at para. 106, provided these assumptions are not based on arbitrary and demeaning stereotypes.
In the present case, I believe that the presumption that those on social assistance cannot provide for any person they may sponsor without resorting to the State for assistance is an informed general assumption made by the legislator. Such an assumption does not reflect, as the applicant suggests, the stereotypical view that people who receive social assistance are less worthy individuals (applicant’s further memorandum, at paragraph 52) but instead is based on an informed general assumption that an individual on social assistance cannot provide the necessary financial support to aid a new immigrant to establish himself in Canada.
[39]The applicant claims that withholding the right to sponsor one’s spouse does not recognize the potential that the sponsored spouse may be able to earn an income, which could result in the sponsor getting off social assistance. The alleged failure to recognize the earning potential of the sponsored spouse, the applicant alleges, reinforces and perpetuates the disadvantage already experienced by recipients of social assistance. There is no evidence on file that the applicant’s spouse would be able to find work if this sponsorship application was granted. The evidence is that while in Montréal, Mr. Cosma was working for an employer who was close to the family, however since the expiration of his temporary work visa, the family has moved from Montréal, Quebec to Victoria, British Columbia. As was said before, the evidence is silent on the potential employability of Mr. Cosma in Victoria. In principle, I recognize that there may be cases where once the sponsored spouse obtains status in Canada the sponsor can get off social assistance. This being said, the Supreme Court in Gosselin determined that perfect correspondence between a program and the social reality of the claimant group is not required to find that a challenged provision complies with section 15 of the Charter. As Chief Justice McLachlin stated in Gosselin, at paragraph 55:
Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required to find that a challenged provision does not violate the Canadian Charter. The situation of those who, for whatever reason, may have been incapable of participating in the programs attracts sympathy. Yet the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group. As Iacobucci J. noted in Law, supra, at para. 105, we should not demand “that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter”. . . . No matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable. The fact that some people may fall through a program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1).
[40]As stated above, it is possible that in some cases the legislator’s assumptions underlying the social assistance bar, namely paragraph 133(1)(k) of the IRPR, may not be accurate. For this exact reason, namely to make Canada’s immigration system correspond as closely as possible to the different realities faced by permanent residents and Canadian citizens, the legislator has contemplated and built into the immigration system an alternative method of reuniting families that would otherwise not be possible due to receipt of social assistance. Pursuant to section 25 of the IRPA, the Minister of Citizenship and Immigration can permit a sponsorship, even though a sponsor is in receipt of social assistance, on the basis of humanitarian and compassionate grounds. Citizenship and Immigration Canada in their Inland Processing Manual (IP), Chapter IP2: Processing Applications to Sponsor Members of the Family Class, at section 5.28, Table 15 specifically states that:
Since receipt of social assistance demonstrates an inability to provide for one’s own basic requirements, the recipient would be unable to support other family members, including spouse, common‑law or conjugal partners and dependent children. The sponsor may be eligible once social assistance is discontinued. This bar to sponsorship may, upon request by the foreign national, be waived for humanitarian and compassionate reasons or public policy provided the sponsor requests that the application continue despite their ineligibility.
Moreover, it is also possible that instead of being sponsored by their spouse an individual can apply independently for permanent residence namely as an economic migrant and benefit from additional selection points on the basis of their close relationship with a Canadian citizen or permanent resident. And finally, even where a humanitarian and compassionate ground application is refused and where economic class immigration is not possible, a sponsorship application can always be remade once the sponsor is no longer in receipt of social assistance. In the case of sponsorship of a spouse, common-law partner or dependent child such a sponsorship application can be made even if the minimum income requirement under subsection 133(4) of the IRPR is not met, once the sponsor is no longer in receipt of social assistance, the whole subject to a written undertaking duly signed (see paragraph 36 of this decision).
(iii) Ameliorative purpose or effect of paragraph 133(1)(k)
[41]This third contextual factor is neutral in the present case as the impugned regulation was not designed to improve the condition of any one group.
(iv) Nature and scope of the interest affected by paragraph 133(1)(k) of the IRPR
[42]It has been noted by the Supreme Court of Canada that an interest will be more adversely affected in cases where there is complete exclusion or non‑recognition as opposed to cases where the legislative distinction between the group in question recognizes or accommodates the group to an extent, but is more restrictive than one would like (Egan v. Canada, [1995] 2 S.C.R. 513, at paragraph 64).
The discriminatory calibre of a particular distinction cannot be fully appreciated without also evaluating the constitutional and societal significance of the interest(s) adversely affected. Other important considerations involve determining whether the distinction somehow restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society (e.g. voting, mobility). Finally, does the distinction constitute a complete non‑recognition of a particular group? It stands to reason that a group’s interests will be more adversely affected in cases involving complete exclusion or non‑recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like.
[43]It is therefore extremely relevant that the legislator has consciously provided mechanisms whereby sponsors on social assistance can apply for relief from the provisions of paragraph 133(1)(k) if the bar from sponsorship would operate unfairly in their particular circumstances, as discussed above (see paragraph 40 of this decision).
[44]The Federal Court of Appeal in de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655, a case dealing with paragraph 117(9)(d) [as am. by SOR/2004-167, s. 41] of the IRPR which precludes an applicant from sponsoring a person not declared to the Minister at the time the sponsor was granted permanent resident status, determined that the existence of section 25 of the IRPA was a relevant factor in determining that paragraph 117(9)(d) was valid and did not violate the Charter at paragraphs 49 and 52):
Nor does paragraph 117(9)(d) preclude other possible bases on which Ms. de Guzman’s sons may be admitted to Canada. In particular, they could apply to the Minister under section 25 of the IRPA for a discretionary exemption from paragraph 117(9)(d) or for permanent resident status. Discretion may be exercised positively when the Minister is of the opinion that it is justified by humanitarian and compassionate circumstances relating to the applicant, taking into account the best interests of a directly affected child or by public policy considerations. Subsection 24(1) also confers a wide discretion on the Minister to grant temporary permits when circumstances so warrant. In addition, the sons, who are now young adults, may always apply for visas to come to Canada in the “economic class”.
[. . .]
In these circumstances, I am not persuaded that Ms. de Guzman has been deprived of the constitutional rights to liberty and security of the person guaranteed by section 7 of the Charter. Accordingly, it is not necessary to consider whether paragraph 117(9)(d) is either in accordance with the principles of fundamental justice, or saved by section 1.
[45]Although de Guzman deals with section 7 of the Charter, I believe the finding of the Federal Court of Appeal is relevant to the case at hand. The fact that the legislator provided the Minister with discretion in applying the provisions of the IRPA to take into account humanitarian and compassionate circumstances and public policy considerations demonstrates that the legislator recognized that those on social assistance as well as others disadvantaged by the strict wording of the IRPA can be accommodated by the Minister where strict interpretation of the IRPA would lead to unjust results.
[46]The ability to seek relief from the bar on sponsorship for those in receipt of social assistance is in my opinion proof that this bar is not designed to offend a person’s dignity, nor would a reasonable person find it too. Given the analysis conducted above, I am of the opinion that the applicant’s claim of discrimination fails on all branches of the Law test as the differential treatment of those in receipt of social assistance is not on the basis of a personal characteristic, receipt of social assistance cannot be considered an analogous ground and the impugned provision does not discriminate in a substantive sense as the effect of paragraph 133(1)(k) of the IRPR is not demeaning to the applicant or others in receipt of social assistance.
IV. Conclusion
[47]Given that the discrimination claim fails on all three parts of the Law test, I find that paragraph 133(1)(k) of the IRPR does not violate section 15 of the Charter. Consequently, I will not deal with the remaining issues.
[48]As I have found that paragraph 133(1)(k) of the IRPR does not discriminate within the meaning of section 15 of the Charter this application for judicial review is denied.
[49]The applicant and the respondent both suggest that the following question be certified:
Whether paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter in that it discriminates on the basis of the analogous ground of receipt of social assistance.
I agree that this is a question of serious importance and as such I will certify the question. For the reasons given above, my answer to this question is “no.”
JUDGMENT
THIS COURT ORDERS THAT:
‑ The application for judicial review is dismissed.
‑ The following question is certified: “Whether paragraph 133(1)(k) of the IRPR violates subsection 15(1) of the Charter in that it discriminates on the basis of the analogous ground of receipt of social assistance.”