Arguing Charter Values in a Humanitarian and Compassionate Permanent Residence Application

“The?Charter?is not some holy grail which only judicial initiates of the superior courts may touch.? The?Charter?belongs to the people.? All law and law-makers that touch the people must conform to it” - Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC)

Applications for permanent residence on humanitarian and compassionate (‘HC’) grounds (‘HC applications’) are one area in immigration law where Charter Values can play an important role.

In this post, I consider how Charter Values can be argued in the specific context where a foreign national may experience hardship in the form of discrimination based on disability in their home country if returned there.

HC applications are made possible by virtue of section 25 of the Immigration and Refugee Protection Act (‘Act’), which provides that a foreign national in Canada who is inadmissible, or who does not meet the requirements of the Act, may apply for permanent resident status and/or an exemption from the Act, if justified by humanitarian and compassionate considerations.

In Kanthasamy, the Supreme Court of Canada stated that section 25(1) should be construed broadly, given that its purpose is to “offer equitable relief in circumstances that ‘would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another […]” (para 21).

According to guidance from Immigration, Refugees and Citizenship Canada (‘IRCC’), HC applicants “may base their requests for H&C consideration on any relevant factors including, but not limited to:

·?????? establishment in Canada for in-Canada applications;

·?????? ties to Canada;

·?????? the best interests of any children directly affected by the H&C decision;

·?????? factors in their country of origin including adverse country conditions;

·?????? health considerations including inability of a country to provide medical treatment;

·?????? family violence considerations; consequences of the separation of relatives;

·?????? inability to leave Canada has led to establishment (in the case of applicants in Canada);

·?????? ability to establish in Canada for overseas applications;

·?????? any unique or exceptional circumstances that might merit relief.

Adverse factors in their country of origin could include “factors having a direct, negative impact on the applicant such as war, natural disasters, unfair treatment of minorities, political instability, lack of employment, widespread violence etc.” With respect to discrimination, IRCC guidance states that “[i]n assessing whether an applicant will be affected by discrimination, discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection 25(1), whether or not the applicant has evidence that they have been personally targeted.”

If an HC applicant is concerned that they will be discriminated against based on their disability if returned to their country of origin, and provide evidence to support their concern, then IRCC officers will have a corresponding duty to consider this evidence and give it weight in their overall assessment of the HC application. In other words, they must apply their discretion to come to a decision.

In applying their discretion, they must be guided by Charter Values, including the equality value captured by section 15 of the Canadian Charter of Rights and Freedoms. In Tabingo v. Canada, the Federal Court of Appeal noted that section 3(3)(d) of the Act “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 v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paragraph 24.”

Section 3(3)(d) states that the 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 […]”.

Paul Daly argues that the goal of the “Doré Duty” is to “empower administrative decision-makers … to engage with the Charter” (p 18). The Supreme Court in Doré put it this way: “administrative decisions are?always?required to consider fundamental values […] administrative bodies are empowered, and indeed required, to consider?Charter?values within their scope of expertise” (para 35).

Most recently in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories, the Supreme Court of Canada reinforced this principle and defined Charter Values. According to our highest court: ?

Charter?values are those that “underpin each right and give it meaning” (Loyola, at para.?36).?Charter?values are inseparable from?Charter?rights, which “reflect” them (para.?4). The choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision?making process of the various branches of government. (para 75)

According to the Supreme Court, the?Doré?framework applies not only where an administrative decision directly infringes?Charter?rights but also where it simply engages a value underlying one or more?Charter?rights (para 77).

Paul Daly explains that the Doré Duty is triggered when an administrative decision engages the protections enumerated in the Charter, where ‘engagement’ is understood broadly so that “it is not necessary for the decision-maker to determine whether a decision will infringe a Charter right in order to consider Charter values.” Any exercise of statutory discretion must comply with the Charter, and decision-makers are expected to engage with it in “an informal, good faith manner” (p 11).

Daly notes that the Charter value relied upon must be relevant to the decision to be taken, and that “much of the time, a Charter value will be relevant because it has been raised in the decision-making process or because the context makes it obviously relevant […]” (p 12).

A foreign national who fears the hardship of discrimination based on disability if returned to their country of origin can therefore prompt an IRCC officer to consider the equality values underpinning section 15 of the Charter when assessing their application.

Section 15 holds that “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.”

The foreign national can also rely on the principle of statutory interpretation that Canadian “legislation will be presumed to conform to international law” (R. v. Hape, 2007 SCC 26 at paras 53–56). Accordingly, section 15 of the Charter and its underlying Charter Values should be interpreted in a manner that gives effect to Canada’s international human rights obligations.

Canada has accepted the legal obligations contained in the United Nations (UN) Convention on the Rights of Persons with Disabilities (the CRPD) (Library of Parliament), a fact that draws this international treaty into the IRCC officer’s Doré Duty as it applies to the foreign national in this example.

In conclusion, foreign nationals applying for permanent residence based on humanitarian and compassionate grounds can rely upon and expect officers to consider Charter Values. Failing to do so can result in their decision being found unreasonable by a reviewing court (Daly p 10).

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