T-894-78
Elizabeth Lodge, Carmen Hyde, Eliza Cox, Elaine
Peart, Rubena Whyte, Gloria Lawrence, Lola
Anderson (Applicants)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Mahoney J.—Toronto, March 2;
Ottawa, March 3, 1978.
Immigration — Applicants subject to deportation orders —
Complaint before Canadian Human Rights Commission —
Whether or not respondent should be enjoined from executing
deportation orders pending disposition of the complaint —
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2, 3, 4,
5.
Applicants, all black Jamaican nationals who lied in their
applications to be landed as immigrants, were ordered deported
and had exhausted all appeal procedures. Before the execution
of the deportation orders, however, applicants filed a complaint
with the Canadian Human Rights Commission and now seek
an order of the Court enjoining the respondent from executing
those orders.
Held, the applications are dismissed. What the Commission
is authorized, by section 4, to investigate and act upon is a
discriminatory practice as described in sections 5 to 13. If what
occurred is not such a discriminatory practice then the fact that
it was founded on a prohibited ground of discrimination does
not render it amenable to action by the Commission. Section 5
is the only section describing a discriminatory practice upon
which the applicants rely and, assuming everything in the
alleged complaint to be true, it simply does not disclose a
discriminatory practice as defined by section 5. Respondent's
enforcement of the Immigration Act is not a denial of or a
denial of access to "goods, services, facilities or accommodation
customarily available to the general public".
APPLICATION.
COUNSEL:
J. W. I. Lockyer and C. Roach for applicants
Lodge, Hyde, Cox, Peart, Whyte and
Anderson.
J. M. Wainberg, Q.C., for applicant Law-
rence.
G. R. Garton and P. J. Evraire for
respondent.
R. G. Juriansz for Canadian Human Rights
Commission (Watching Brief).
SOLICITORS:
Charles Roach, Toronto, for applicants
Lodge, Hyde, Cox, Peart, Whyte and
Anderson.
Wainberg & Associates, Toronto, for appli
cant Lawrence.
Deputy Attorney General of Canada for
respondent.
R. G. Juriansz, Canadian Human Rights
Commission, Ottawa, for Canadian Human
Rights Commission (Watching Brief).
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicants are all Jamaican
nationals; they are all black; they are all women
and they all lied in their applications to be landed
as immigrants in Canada. If they had told the
truth they would not have been landed. They have
all been ordered deported and have exhausted all
appeal procedures. Expulsion dates for the appli
cants Cox, Lawrence and Anderson have not been
set; Peart's expulsion date was set as March 24,
1978; Whyte's as March 10 and Lodge's and
Hyde's as March 3. Following service of the notice
of motion filed herein March 2, the respondent
suspended execution of the deportation orders
pending disposition of the motion.
The Canadian Human Rights Commission,
constituted under the Canadian Human Rights
Act,' opened for business, so to speak, on March 1,
1978. The applicants, that day, filed a complaint
with the Commission pursuant to subsection 32(1)
of the Act. The applicants now ask the Court for
an order enjoining the respondent from executing
the deportation orders pending disposition of the
complaint. The motion, by leave on short notice,
was heard March 2. The respondent's voluntary
suspension of execution of the deportation orders
has permitted judgment to be given with reasons.
The purpose of the Canadian Human Rights
Act, hereafter called "the . Act", is set forth in
section 2, the relevant portion of which follows:
' S.C. 1976-77, c. 33, s. 21.
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life that
he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex or marital status, ...
Prohibited grounds of discrimination are pre
scribed by section 3 and the authority for action by
the Commission derives from section 4.
3. For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, conviction for
which a pardon has been granted and, in matters related to
employment, physical handicap, are prohibited grounds of
discrimination.
4. A discriminatory practice, as described in sections 5 to 13,
may be the subject of a complaint under Part III and anyone
found to be engaging or to have engaged in a discriminatory
practice may be made subject to an order as provided in
sections 41 and 42.
The discriminatory practice alleged by the appli
cants in their complaint is that defined by para
graph (a) of section 5.
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to
the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
The applicants share common elements of race,
national origin, colour and sex. They state in their
complaint:
The Complainants believe that the real reason for their
deportation is that they are Black and their country of origin is
Jamaica. The Complainants have reason to believe that there
has existed in the Ministry of Employment and Immigration
since the year 1975 discriminatory internal directives or secret
laws especially and particularly aimed at Jamaican women as a
class. And that they have been affected by the administration
of the said internal directives or secret laws.
In the circumstances, I feel bound to say,
expressly, that the material before me does not
sustain the proposition that their deportation has
been ordered because of the applicants' race,
colour, national or ethnic origin or sex rather than
because they lied to obtain landing. As to the East
Indian Control Program, it seems to me that where
the nationals of a particular country are engaged
in the systematic evasion of Canadian immigration
law, the adoption of special measures to deal with
applicants for entry from that country is readily
understandable and explicable in terms other than
the word "discrimination" in any pejorative sense.
Likewise, having identified the proclivities of a
disproportionately large number of members of the
Rastafarian movement, immigration officials are
probably expected by Canadians to pay particular
attention to all Rastafarians seeking to enter
Canada. That expectation is not grounded in
antipathy to Jamaican nationals but in antipathy
to criminals. It is certainly possible by selective
quotation to cull a picture of practices founded on
racial and other discrimination from the Immigra
tion Department's instructions to its officers
respecting East Indian and Rastafarian entrants
but, when read as a whole, these documents convey
a picture devoid of prejudice except against per
ceived law breakers. Whether the perception is
well conceived is another matter.
That said, for purposes of this application, I will
assume everything alleged in the complaint to be
true. On that assumption, a number of the prohib
ited grounds of discrimination, as defined by sec
tion 3 of the Act are established. However, what
the Commission is authorized, by section 4, to
investigate and act upon is a discriminatory prac
tice as described in sections 5 to 13. If what
occurred is not such a discriminatory practice then
the fact that it was founded on a prohibited ground
of discrimination does not render it amenable to
action by the Commission.
Section 5 is the only section describing a dis
criminatory practice upon which the applicants
rely and, again assuming everything alleged in the
complaint to be true, it simply does not disclose a
discriminatory practice as defined by section 5. If I
had any real doubt about that I should be entirely
disposed to seek the jurisdiction upon which I
could properly base an order having the desired
effect. However, the enforcement by the respond-
ent of the provisions of the Immigration Act 2 is
simply not a denial of or a denial of access to
"goods, services, facilities or accommodation cus
tomarily available to the general public". It is not
a discriminatory practice and the reason for its
enforcement, even if established to be as reprehen
sible as the applicants allege, cannot make it what
it is not.
ORDER
The motion is dismissed with costs.
2 R.S.C. 1970, c. I-2.
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