December 18, 2018
The Federal Court of Appeal’s Recent Decision in Tan v. Canada (AG)
How does immigration status affect a person’s ability to file a complaint with the Canadian Human Rights Commission? On 17 October 2018 the Federal Court of Appeal released Tan v. Canada (Attorney General), which deals with this very question. Mr. Tan was serving a life sentence in Canada for second degree murder when he filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the basis of his religion. The citizen of Malaysia and former temporary resident of Canada had been brought back to Canada from Belgium pursuant to the Extradition Act. He was also the subject of a deportation order that would be enforced upon completion of his sentence.
The appellant challenged the finding by the Canadian Human Rights Commission that as a person with “no immigration status, he was not lawfully present in Canada”. As a result, the Commission had concluded that it lacked jurisdiction under the Canadian Human Rights Act (CHRA) to consider Mr. Tan’s complaint.
The Honourable Mr. Justice Rennie, writing for the majority in Tan, began his decision by considering Forrest v. Canada (Attorney General), a 2006 Federal Court of Appeal case which held that the Commission lacked jurisdiction to hear complaints from individuals without immigration status. Forrest found that it was the role of the Minister of Citizenship and Immigration to determine a person’s status. In Tan, the majority also interpreted “lawfully present in Canada” and “status of an individual”, terms which appear in the CHRA.
Notably, the majority found that “Forrest FCA was wrongly decided and ought no longer to be followed”. Justice Rennie also wrote that “inclusive references” in the CHRA “demonstrate an intention to extend the benefit of the legislation to as broad a group of persons as possible.”
The correct approach, in the majority’s view, is for the Commission to first attempt to answer the question of whether or not the complainant is lawfully present on their own. If the Commission cannot draw its own conclusion on this point, it should seek the advice of the appropriate minister. Justice Rennie cautions that the advice of the Minister – be it the Minister of Justice, Minister of Citizenship and Immigration or Minister of Public Safety and Emergency Preparedness, or anyone else – is only one factor to consider amongst myriad “other relevant factors”.
Mr. Tan’s entry into Canada was “lawful as it was authorized under the Extradition Act”, concluded the majority. Furthermore, Mr. Tan was “lawfully present in Canada” when the alleged discrimination occurred and so the Commission ought to consider the complaint.
The Tan decision does not apply to any individual without immigration status, however. The majority expressly distinguishes Mr. Tan’s case from that of an individual on immigration detention, or a person whose refugee claim or pre-removal risk assessment was rejected. Justice Rennie writes that Mr. Tan is “required by Canadian law to remain in Canada for the duration of his sentence”, unlike individuals who “but for pending legal proceedings or administrative delay, would be removed from Canada.”