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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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