PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
THE MINISTER OF FOREIGN AFFAIRS
and
CANADIANS FOR JERUSALEM
Intervener
REASONS FOR ORDER AND ORDER
[1] The Applicant is a Canadian citizen who was born in Jerusalem on December 12, 1987. He applied for, and received, a Canadian passport which indicates his place of birth as "Jerusalem". In his application form he had indicated his place of birth as "Jerusalem, Israel". His counsel wrote a letter to Passport Canada requesting that "Israel" also be included in the date of birth field. This request was denied on December 21, 2004.
[2] The letter denying the requested change stated:
I am replying to your facsimile of August 26, 2004, concerning the passport birth place designation for your client, Mr. Eliyahu Yoshua Veffer. I apologize for the delay in responding.
The place of birth designation code utilized in Canadian passports are set by the International Organization for Standardization which maintains the country list for the International Civil Aviation Organization. This United Nations organization establishes the standards for international travel documents. The Government of Canada has established that designation for individuals born in Jerusalem be indicated as Jerusalem alone and in full in the Canadian passport. There is one exception for individuals born before May 14, 1948. Upon request, Palestine may be written instead of Jerusalem. As no other appellation is authorized at the present time, this will explain why your client's country of origin is not noted in his passport.
I trust this information is of assistance to you in replying to your client.
The Applicant's passport does not contain any restrictions, and the Applicant may travel as any other Canadian citizen holding a valid Canadian passport.
[3] The Applicant is seeking judicial review of that decision and is seeking a mandamus order forcing the Respondent to enter either "Jerusalem, ISR," "ISR", or "Jerusalem, de facto ISR" in his passport. It is his position that the Respondent's policy regarding place of birth descriptions in passports, insofar as it concerns "Jerusalem", violates his rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the "Charter"). As the Applicant states in his affidavit:
11. I take pride that I was born in Jerusalem, Israel. My religion teaches me that Jerusalem is the capital of Israel. This is an integral part of my religious belief and my personal identity.
12. When I am not allowed to have Israel in my passport, even though I was born in Israel, I feel that the Government of Canada is refusing to allow me to express my identity as a member of the Jewish people; I feel that the Government is rejecting and denying my religions belief in the significance of Jerusalem to the Jewish religion. When I see that other people are allowed to have the city and county of their birth in their passport and I am not, I feel that I am the victim of discrimination in a matter that touches me deeply. When the Canadian government does not allow me to put in my passport that I am born in Jerusalem, Israel, they are denying to me the truth of who I am.
[4] By order dated August 29, 2005, the Court allowed a non-profit group entitled Canadians for Jerusalem to intervene to a) provide non-duplicate information and make submissions regarding the historical religious significance of Jerusalem to various groups and b) to address international law issues in connection to the status of Jerusalem.
[5] For the purpose of background, I rely on the following historical facts gleaned from the affidavit of John Quigley, President's Club Professor in Law at the Moritz College of Law of the Ohio State University in Columbus, Ohio, which was filed by the Intervener. This information is attached solely to give a historical background to facilitate an appreciation of the present situation in the Middle East:
7. Israel was established as a state under international law, but the status of Jerusalem has always been a separate issue under international law. Jerusalem was not a central focus in the events leading to the establishment of Israel as a state. An important step in the creation of Israel was the Balfour Declaration of 2 November 1917, a statement issued by the British government. Jerusalem was not mentioned in the Balfour Declaration, which is attached as Exhibit "B" to this affidavit. At the time, Jerusalem was a city within the Ottoman Empire. Britain was at war with the Ottomans and had strategic interests in the region including the Suez Canal. The Balfour Declaration could not and did not serve to legally create a Jewish state, but rather was an expression of support by the British government for the principle of a Jewish homeland in Palestine.
8. The Balfour Declaration was a political response to a political movement, namely the Zionist movement. Zionist organizations were largely secular organizations that were not engaged in a religious process but rather a political process of "national self-determination." Along with a wide variety of other national, cultural and ethnic groups at the end of the First World War, they were seeking the creation of a nation state under international law, a state where European Jewry could escape persecution.
9. Following the defeat of the Ottomans, Britain and its allies were determined to divide the former Ottoman Empire into a series of smaller legal units. Britain's control over Palestine was approved by a mandate issued by the Council of the League of Nations. Jerusalem was not mentioned in the mandate instrument, However, this instrument did mention a need to define the rights of different religious communities in holy sites. Some of these were in Jerusalem, although, to repeat, the instrument did not expressly mention Jerusalem. Its sole sentence on the topic of the holy sites, found in Article 14 of the mandate instrument reads: "A special Commission shall be appointed by the Mandatory to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine."...
10. On 14 May 1948, the Jewish Agency for Palestine, the entity that represented the Jewish community of Palestine at the international level, declared a Jewish state. The Agency's declaration recited a basis for a claim to territory by such a state. It read: "By virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, we hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel."...
11. This document did not specify the territorial extent of the state thus being declared. It did not mention Jerusalem or any other specific locations.
12. The reference to "the resolution of the United Nations General Assembly" was to Resolution 181 of 29 November 1947, commonly called the partition resolution. Resolution 181 proposed to the Jewish and Arab communities of Palestine that they each establish a state in Palestine, to be linked in an economic union, and within territory specified in detail by the resolution. Resolution 181 dealt in detail with Jerusalem, placing its territory within neither projected state, but rather characterizing it as a corpus separatum that would, at the least for an interim period, be governed by an international administration. ...
13. Hence, when the Jewish Agency for Palestine based itself on Resolution 181, it was not asserting a claim to Jerusalem. Once Israel was established, it maintained this distinction between Jerusalem and other territory that it controlled. In 1949, when Israel applied for membership in the United Nations, it was asked whether, if admitted to membership, it would rely on UN Charter Article 2, paragraph 7, which reserves to member states matters within their "domestic jurisdiction" to avoid UN efforts to seek an appropriate status for Jerusalem. The representative of Belgium put the question to Mr. Abba Eban, who represented Israel:
"Could the representative of Israel tell us whether, if Israel were admitted to membership in the United Nations, it would agree to co-operate subsequently with the General Assembly in settling the question of Jerusalem and the refugee problem or whether, on the contrary, it would invoke Article 2, paragraph 7 of the Charter which deals with the domestic jurisdiction of States."
To this question, Mr. Eban replied:
"The Government of Israel will co-operate with the Assembly in seeking a solution to those problems. Once again, I do not wish rashly to commit myself to legal theories, being perhaps the least juridically versed of any present, but I do not think that Article 2, paragraph 7, of the Charter, which relates to domestic jurisdiction, could possibly affect the Jerusalem problem, since the legal status of Jerusalem is different from that of the territory in which Israel is sovereign.
...
14. Thus, Israel, through its representative at the United Nations, re-affirmed that Jerusalemwas not territory in which it claimed sovereignty. By this statement, Israel acknowledged that Jerusalem was outside the territory over which it claimed sovereignty.
15. Nothing has changed since 1949 in regard to any legal basis for a claim to Jerusalemby Israel. No new basis that might give Israel sovereignty in Jerusalem has emerged. After 1949, the General Assembly continued to try to work out an appropriate status for Jerusalem. Jerusalem has not been recognized by the international community as being under Israel's sovereignty.
16. The concept expounded in Resolution 181 that Jerusalem be in a separate status related to the significance it holds for Muslims, Jews, and Christians.
Palestinian Claims to Sovereignty
17. From the Palestine side, there is a claim of sovereignty based on the many centuries of Palestinian occupation of the territory of Palestine. The international community has recognized a right of self-determination for the Palestinian people, as reflected in U.N. General Assembly Resolutions 3236 of 22 November 1974. ...
The Eastern and Western Portions of Jerusalem
18. When Israel came into control of the eastern portion of Jerusalem in 1967, and moved to incorporate it into the same administration that applied to Israel, the international community objected, as expressed in U.N. Security Council Resolution 252 of 21 May 1968. The Council objected to administrative measures that Israel had taken that amounted to merging of east Jerusalem with west Jerusalem, calling them invalid efforts to change the status of Jerusalem. ...
19. This eastern portion was viewed by the international community as falling under the regime of belligerent occupation, since it was taken militarily [in contravention of the U.N. Charter and principles of international law]. In 1971, the U.N. Security Council adopted Resolution 298, in which it criticized Israel for purporting to merge the eastern portion with the western portion of Jerusalem, and referred to the eastern portion as "the occupied section of Jerusalem." ...
20. The International Court of Justice has referred to territory eastward of the 1949 Israel-Jordan armistice line as "occupied territories in which Israel had the status of occupying Power." It said, "All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power." ...
21. The fact that the eastern portion of Jerusalem is viewed as occupied territory has not altered the fact that the international community continues to regard sovereignty in the entire city of Jerusalem as unresolved. To date, other states have declined to locate their embassies in Jerusalem, even though Israel's government considers Jerusalem to be Israel's capital city. El Salvador and Costa Rica are the only states that have located embassies in Jerusalem. The other sixty-seven states with embassies in Israel have located them elsewhere than Jerusalem.
Intervener's Record Vol. I, page 7
[6] The Applicant accepts that the status of Jerusalem at international law is unsettled. It is also undisputed by all parties that Jerusalem plays an enormous role in three major monotheistic faiths: Judaism, Islam, and Christianity.
ISSUES
[7] This case raises the following issues:
i. Was there a breach of the Applicant's rights respecting freedom of religion under s. 2(a) of the Charter?
ii. Was there a breach of the Applicant's equality rights under s. 15 of the Charter?
iii. If there is a breach, is it saved by s. 1 of the Charter?
BACKGROUND
[8] The issuance of passports is a prerogative right of the Crown. Passports in Canada are issued under authority of the Canadian Passport Order SI/81-86 as amended by SI/2001-121. It defines a passport as
"passport" means an official Canadian document that shows the identity and nationality of a person for the purpose of facilitating travel by that person outside Canada
It also provides inter alia:
3. Every passport
(a) shall be in a form prescribed by the Minister;
(b) shall be issued in the name of the Minister on behalf of Her Majesty in right of Canada;
(c) shall at all times remain the property of Her Majesty in right of Canada;
(d) shall be issued on the condition that the bearer will return it to the Passport Office forthwith when requested to do so by that office;
(e) shall be signed by the person to whom it is issued; and
(f) shall, unless it is sooner revoked, expire not later than five years from the date on which it is issued.
and
5. No passport shall be issued to any person unless an application for a passport is made by that person to the Passport Office in a form prescribed by the Minister.
[9] Passports are issued by the Passport Office in accordance with Canada's Passport Policy. This policy is reflected in the Passport Policy Manual (PPM). The pertinent parts of the PPM in the place of birth chapter provide:
Purpose
The place of birth (POB) entered in a passport is a feature to assist in identifying the bearer of the passport and, for the majority of travelers, may prevent further questioning at entry or exit points.
Policy
Inclusion of the applicant's POB in the passport is optional. The POB must, however, be provided on the application form.
Notes:
If the applicant wishes to include the POB but has concerns about the POB appearing in the passport, he/she may choose to have only the city or country name appear in the passport.
An applicant who requests a complete omission of the POB must sign a statement "Request for a Canadian passport without Place of Birth" (PPT 077) which is to be scanned in "Supporting Documents".
Warning - Omission of POB
The application form advises applicants to contact the representatives of the countries to be visited in order to determine if any difficulties will be encountered in entering any of those countries without the place of birth inscribed in the passport.
Description
An applicant's POB is:
an important element of identification;
of primary importance when obtaining permission to enter many countries; and
neither an official recognition by the Canadian government of any country nor support by the Canadian government of either faction where the POB indicated is a territory the sovereignty over which has not been finally settled under international law.
Inscription Rule #1
The POB (city, town or village and country code) is normally inscribed in the passport in full as indicated on the documentary evidence of citizenship (DEC) when shown.
Inscription Rule #2
If the DEC does not show a POB, then the POB inscribed in the Canadian passport should normally be the POB provided by the applicant on the application form.
Note: Applicants born outside Canada are not requested to provide documents to establish the Place of Birth unless there is a discrepancy between the information given on the application and the one inscribed in a previous passport which cannot otherwise be resolved.
Inscription Rule #3
It is established practice there where the POB name (city or country) has changed during the course of the applicant's lifetime, the POB in the passport may be indicated either as it is currently known or as it was know at the time of the applicant's birth.
Notes:
It is recommended that the applicant have the POB entered in the passport as it is currently known. The preferred method of inscribing the POB is the city name followed by the country code. It should be explained that the standard method provides the best assurance of ease of travel and acquisition of visas.
Should an applicant choose a variance from the recommended POB inscription, advise the applicant that should he/she decide at a later date to change the place of birth indicated in the passport, the applicant would have to request a new passport at his/her own expense. Add a remark to the applicant's record that he/she was so advised.
Inscription Rule #4
Where the applicant's POB is a territory, the sovereignty over which has not been finally settled under international law or that is not recognized by the Canadian government, it will be inscribed as requested by the applicant.
Note: If the POB designation is not acceptable to the visa-issuing authorities of other countries in such circumstances, the passport may be replaced by another passport showing an acceptable, but not fraudulent, designation of POB at the applicant's expense.
(Underlining added)
R.R. Vol. II page 240
[For clarification it should be noted that JWS is the acronym used by the passport office to identify the Security Bureau for Passport Canada]
[10] However, with respect to Palestine, Jordan, the Gaza Strip, Israel and Jerusalem, Canada has adopted a special policy, the most recent reiteration of which can be found in a document entitled Security JWS Bulletin No. 1 issued in January 2002. It provides in respect of Place of Birth and Jerusalem as follows:
Palestine
If applicant was born on or after May 14, 1948, Palestine cannot be entered as the country of birth. The country must be entered as Jordan, Israel, Gaza Strip or Jerusalem as the case may be.
If applicant was born before May 14, 1948, Palestine may be entered upon request but applicant should always be encouraged to have the place of birth entered as it is presently known.
Palestine is to be used in place of, not in combination with, Jordan, Israel, Gaza Strip or Jerusalem. Palestine usually stands alone but may be entered in conjunction with a city (except Jerusalem)
Due to the present political situation, Jerusalemmust stand alone. It cannot be entered in conjunction with Palestineor any other country name.
Palestine, Jordan, Israel and Gaza Strip are all to be treated as any other country name. The place of birth may be entered as:
a. city name country code eg. Bethlehem JOR
b. city name in full (only if no country coded exists) eg: Gaza Gaza Strip
c. city name alone eg: Bethlehem country name alone eg: Gaza Strip
In the examples below:
If the person was born on or after May 14, 1948 the options are a b and c
It (sic) the person was born before May 14, 1948 all options apply (a b c d and e)
If Palestine is indicated as place of birth, if born after May 14, 1948 must choose present country name.
| Place of Birth on Application |
In City of Birth Field in IRIS enter |
For County of Birth in IRIS, from Drop Down Menu, Choose |
Passport Will Show |
||
| City |
County |
||||
| city name |
Gaza Strip |
a |
city name |
Gaza Strip |
city name Gaza Strip |
|
|
|
b |
city name |
No Applicable Code |
city name |
|
|
|
c |
|
Gaza Strip |
Gaza Strip |
|
|
|
d |
city name |
Palestine |
city name Palestine |
|
|
|
e |
|
Palestine |
Palestine |
| city name |
Jordan |
a |
city name |
Jordan |
city name JOR |
|
|
|
b |
city name |
No Applicable Code |
city name |
|
|
|
c |
|
No Applicable Code |
Jordan |
|
|
|
d |
city name |
Palestine |
city name Palestine |
|
|
|
e |
|
Palestine |
Palestine |
| city name |
Israel |
a |
city name |
Israel |
city name ISR |
|
|
|
b |
city name |
No Applicable Code |
city name |
|
|
|
c |
|
No Applicable Code |
Israel |
|
|
|
d |
city name |
Palestine |
city name |
|
|
|
e |
|
Palestine |
Palestine |
| Jerusalem* |
|
a |
|
No Applicable Code |
Jerusalem |
Jerusalemalways stands alone
(Underlining added)
R.R. Vol. II page 193
[11] Annex F of the PPM also reflects this policy. It sets out the abbreviations and country codes to be used by the Passport Office. With respect to Israel and Jerusalem it states:
ISR ISRAEL - If born prior to May 14, 1948, may write PALESTINE on request - See Palestine - If born in JERUSALEM, do not use ISRAEL - See JERUSALEM
JERUSALEM - Write JERUSALEM alone and in full. - Do not write the country as ISRAEL or JORDAN - If born before May 14, 1948, PALESTINE may be written instead of JERUSALEM alone, on request
(Underlining added)
R.R. Vol. II page 249
[12] Nicholas Wise, the Chief Operating Officer for Passport Canada described in his affidavit the operation of the policy as follows:
19. The place of birth is normally inscribed in the passport in full as indicated on the documentary evidence of citizenship when shown. The preferred method of inscribing the place of birth is the city name followed by the country code. However, place of birth can be inscribed in several manners: city alone, city and country code, country code alone. The space allocation for place of birth in the Canadian passport is twenty-five characters. If the documentary evidence of citizenship does not show a place of birth, the place of birth inscribed in the Canadian passport should normally be the place of birth provided by the applicant on the application form.
20. It is established practice that where the place of birth name (city or country) has changed during the course of the applicant's lifetime, the place of birth in the passport may be indicated either as it is currently known or as it was known at the time of the applicant's birth. It is recommended that the applicant has the place of birth entered in the passport as it is currently known.
21. The 420 Place of Birth document indicates that where the applicant's place of birth is a territory, the sovereignty over which has not been finally settled under international law or that is not recognized by the Canadian Government, it will generally be inscribed as requested by the applicant. However, there is not as much flexibility regarding the inscription of an applicant's place of birth as this statement would lead one to believe. This is because Appendix F of the PPM provides a list of the country codes used to inscribed (sic) place of birth in Canadian passports and outlines additional specifications on the use of these country codes.
...
23. For another example, if an applicant born in Hong Kong requested to have his or her place of birth inscribed as "Hong Kong, CHN", this request would not be granted. The normal practice is to write "Hong Kong" alone and in full. The applicant could request "Hong Kong, HKG", or could request that the place of birth be omitted. The restriction prohibiting "Hong Kong, CHN" is dictated by Canada's foreign policy.
24. With respect to Jerusalem, Appendix F of the PPM is consistent with the information contained in JWS Bulletin No. 1 issued on January 2002. Appendix F provides that for Canadian passport holders born in Jerusalem, the place of birth is inscribed as "Jerusalem" alone and in full. No country code follows the city name. For individuals born before May 14, 1948, upon request, "Palestine" may be written alone and in full instead of Jerusalem. An applicant could also request that the place of birth be omitted from his or her passport.
R.R. Vol. II page 181
[13] The reason for the Respondent's passport policy regarding Canadians born in Jerusalem is succinctly stated in the affidavit of Michael Bell, Canada's former ambassador to Israel.
12. With regard to the status of the City of Jerusalem, Canada opposes Israel's occupation of East Jerusalem and at this time does not recognize Israeli sovereignty over any part of the City of Jerusalem, as defined in the Partition Plan of 1948, on either side of the Green Line, east or west. The inscription of "Jerusalem, Israel" as place of birth in Canadian passports would be perceived as a recognition of sovereignty in contradiction of that policy, which would undermine Canada's credibility and would therefore diminish our capacity to make any contribution toward peace.
R.R. Vol. I page 6
[14] No evidence was provided why this special policy was adopted with respect to Jerusalem instead of adopting a general policy to the effect 'where the place of birth is located in a territory, the sovereignty over which has not been finally settled under international law, or that is not recognized by the Canadian government, only the place of birth may be shown, and the country space must be left blank'.
Issue i): Was there a breach of the Applicant's rights respecting freedom of religion under s. 2(a) of the Charter?
[15] Section 2(a) of the Charter provides:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
[16] The Applicant alleges that the denial of the inclusion of "Jerusalem, Israel" in the passport is a barrier to the free expression of the Applicant's religion. The Court cannot question the assertion of the Applicant that his religion teaches him that Jerusalem is the capital of Israel.
[17] The Applicant refers to Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 at para 50 where Justice Iacobucci stated:
In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, "obligation", precept, "commandment", custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.
[18] In the Applicant's view, the court cannot question the assertion of the Applicant that his religion teaches him that Jerusalem is the capital of Israel, unless the court is prepared to question his sincerity.
[19] Not surprisingly, the Respondent takes the position that the Respondent's freedom of religion is not at all implicated by the way his place of birth is described in his passport.
[20] This court does not question the sincerity of the Applicant's beliefs; however, his argument cannot succeed for the following reasons.
[21] The seminal definition of freedom of religion is found in R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 at page 336 where Chief Justice Dickson stated:
Freedom of Religion
94 A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.
95 Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
(Underlining added)
[22] The passport policy of the Respondent concerns itself with the content of Canadian passports. A passport is a document issued by the government to facilitate the travel of its citizens to foreign places. It is a communication between governments. It identifies the bearer in terms of name, date of birth, place of birth, and most important of all, nationality. It identifies the bearer as a Canadian citizen and sends the following message to other governments (as found on page 1 of every Canadian passport):
The Minister of Foreign Affairs of Canada requests, in the name of Majesty the Queen, all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.
[23] The passport belongs to the government and can be withdrawn at any time. There is nothing in the document that in any way refers to, or restricts, in the language of Big M Drug Mart, supra, "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination". The Applicant is completely free to sincerely believe that Jerusalem is the capital of Israel, to declare this belief openly, and to personally teach and disseminate that belief.
[24] However, no matter how sincere that belief, it does not give the Applicant the right to compel the Respondent to reflect that belief in its communications with other governments. As has been observed many times, the Charter can be used as a shield but not as a sword. The Respondent's passport policy, which refuses to reflect the Applicant's belief in its intergovernmental communications, is neither coercion nor a constraint. There is nothing in the government's passport policy, and the passports issued pursuant thereto, that impinge upon the Applicant's rights under s. 2(a) of the Charter.
Issue ii): Was there a breach of the Applicant's equality rights under s. 15 of the Charter?
[25] The Applicant alleges that the Respondent's passport policy subjects him to discrimination by reason of his religion and his place of birth. He relies on section 15(1) of the Charter which states:
(1) 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.
[26] The Supreme Court of Canada set out the process to analyze a s. 15 claim in Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 D.L.R. (4th) 1. It is a three-step process as described in paragraph 88:
General Approach
(1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach...
(3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
(A) 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?
(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
and
(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
Comparator group
[27] Any consideration of an equality right must commence with establishing an appropriate comparator group. As Justice Binnie so succinctly stated in Hodge v. Canada(Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65 at para 23:
The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.
[28] The Respondent suggests that there should be two comparator groups. Regarding the claim that the Applicant is subject to discrimination because he is Jewish, the comparator group should be non-Jewish Canadian citizen passport applicants born in Jerusalem after May 14, 1948. Regarding being subject to discrimination because of his place of birth, the Respondent accepts the comparator group being Canadian citizen passport applicants born outside of Canada but not in Jerusalem.
[29] The Applicant maintains that the choice of comparator groups falls to the Applicant. The Applicant submits the appropriate comparator group is Canadian citizens born outside Israel.
[30] The Applicant's two claims are contextually intertwined. The importance that the Applicant places on his place of birth being displayed in his passport can only be understood in light of the importance that Jerusalem has in his religion. Logic therefore dictates that one uses the comparator group of "Canadian citizens born outside of Jerusalem".
Inquiry A(a): Does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics?
[31] The evidence reveals that Canada has a policy, in the case of a person born in territories the sovereignty over which has not been finally settled under international law, of allowing the name of the country inscribed in the passport to be that which the applicant has provided in the application. Jerusalem is an exception to this policy. In his cross-examination, Nicholas Wise testified as follows:
Q And it says, "Persons born in territory the sovereignty over which has not been finally settled under international law, the place name and name of the country inscribed in the passport will normally be that which the applicant has provided in his application".
A Yes.
Q That's the current policy?
A It's a broad statement.
Q And Jerusalem would fit that description as a territory the sovereignty of which has not been finally settled under international law, as you understand it?
A And then there were exceptions.
Q So that Jerusalem is an exception to the policy.
A An exception to that broad policy, yes. Mmm-hmm.
A.R. p. 193 questions 14 to 17.
[32] Hong Kong is the only other place in the world where Canadian citizens born abroad are not allowed to indicate their country of birth in the passport. However, Canada does not consider the sovereignty of Hong Kong to be unsettled under international law. The position of Canada is that since July 1, 1997, the sovereign authority over Hong Kong is China. Hong Kong is treated differently, but strictly speaking is not an exception to the policy in relation to territories the sovereignty over which has not been finally settled under international law. As Nicholas Price observed:
Q. So that Jerusalem is an exception to the policy.
A. An exception to that broad policy, yes. Mmm-hmm.
Q. Are you aware of any other exceptions?
A. Hong Kong.
Q. Is the status of Hong Kong still not settled under international law?
A. The Canadian position on Hong Kong is that we write Hong Kong only. We do not write Hong Kong, China, CHA.
Q. And is the basis for that that the status of Hong Kong is not settled under international law?
A. I really couldn't answer that explicitly other than ministerial instruction specifically tells us to write Hong Kong only.
A.R. p. 194 q. 17 to 20
[33] The exception with respect to Jerusalem is of recent vintage. It is undisputed that prior to April 1976, it was the Passport Office's practice to accept as country of birth for the passport the country shown by the passport applicant. Prior to April 1976, a person born in either East or West Jerusalem could obtain a passport that displayed his/her country of birth simply by filling out the requisite form. From April 1976 till 1999, passport applicants born before May 14, 1948 in Jerusalem had a choice between having "Jerusalem, Palestine" or just "Jerusalem" in their passports. Since 1999, the choice lies between Palestine or Jerusalem.
[34] The foregoing shows that the Respondent's passport policy draws a formal distinction between the Applicant and others based on his place of birth. A Canadian passport applicant born in Jerusalem is treated differently from any other passport applicant born outside Canada.
Inquiry A(b): Does the impugned law 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?
[35] The test in Law, supra requires the court to make three sequential inquiries. A positive finding under each step is required before one proceeds to the next inquiry. The first inquiry provides for findings on one of two grounds i) distinction on the basis of personal characteristics and ii) already disadvantaged position. It is immaterial on which ground a positive finding is made. Once such a positive finding is made, as I made regarding a distinction on the basis of personal characteristics, the court proceeds to the second inquiry. Making a positive finding on one or both grounds of the first inquiry has no impact for either the second or the third inquiry. Accordingly, I see no need here to make an inquiry on the second alternative ground (Inquiry A(b) - an already disadvantaged position) given my positive finding on the first ground. The issue of such an inquiry would not have been whether Jews constitute an already disadvantaged group, which is uncontested, but instead whether the impugned law (the passport policy of the Respondent) fails to take that situation into account.
Inquiry B: Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
[36] The Applicant argues that the policy makes a formal distinction on two grounds:
i) religion: his being Jewish; and
ii) analogous grounds: his place of birth.
[37] Religion is an enumerated ground and no one doubts the Applicant's beliefs or the sincerity with which he holds them. However, for the reasons given under Issue i) above, I do not see how the Applicant can make out a case for differential treatment based on religion. The policy and the passport issued pursuant thereto are totally silent on the subject of religion. Neither mentions anything that can be construed to directly, indirectly, by implication or by innuendo, reflect a passport holder's faith. There is simply no connection between the faith of the Applicant, or any passport holder for that matter, and the actual passport. The Applicant's religion is simply not an issue that is relevant with respect to the passport policy.
[38] The criteria for analogous grounds were described by Justices McLachlin and Bastarache in Corbiere v. Canada(Minister of Indian and Northern Affairs),[1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1 at para 13 as:
What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. 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. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion.
[39] A person cannot change their place of birth, i.e. it is immutable. Thus, place of birth qualifies as an analogous grounds. The Respondent's passport policy clearly results in differential treatment on the basis of an analogous ground.
Inquiry (C): Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant, in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
[40] To answer this question the court, in essence, has to decide whether there is differential treatment that constitutes discrimination. The Supreme Court in Law Society of British Columbiav. Andrews, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 recognized that not every differentiation amounts to discrimination. As Justice McIntyre observed at page 168:
31 It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may -- and to govern effectively -- must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions.
[41] Does the differential treatment amount to discrimination in this case? Law, supra suggests in paragraphs 59 and 60 the following method of resolving the difference between discrimination and differential treatment:
... As applied in practice in several of this Court's equality decisions, and as neatly discussed by L'Heureux-Dubé J. in Egan, supra, at para. 56, the focus of the discrimination inquiry is both subjective and objective: subjective in so far as the right to equal treatment is an individual right, asserted by a specific claimant with particular traits and circumstances; and objective in so far as it is possible to determine whether the individual claimant's equality rights have been infringed only by considering the larger context of the legislation in question, and society's past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances. The objective component means that it is not sufficient, in order to ground a s. 15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law.
As stated by L'Heureux-Dubé J. in Egan, supra, at para. 56, the relevant point of view is that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant. Although I stress that the inquiry into whether legislation demeans the claimant's dignity must be undertaken from the perspective of the claimant and from no other perspective, a court must be satisfied that the claimant's assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation. All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.
[42] Thus, the differential treatment must be examined from both a subjective and an objective perspective. There are actually three different questions contained in this phase of the Law analysis: namely:
i) Does the differential treatment discriminate (by imposing a burden upon or withholding a benefit from the claimant) in a manner which reflects the stereotypical application of presumed group or personal characteristics?
ii) Does the differential treatment discriminate (by imposing a burden upon or withholding a benefit from the claimant) in a manner which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being?
iii) Does the differential treatment discriminate (by imposing a burden upon or withholding a benefit from the claimant) in a manner which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a member of Canadian society, equally deserving of concern, respect, and consideration?
[43] Clearly, the Applicant believes he receives differential treatment and therefore has brought this application. There is absolutely no reason to doubt the sincerity of his belief. However, advancing such a belief is not enough. The court has to ascertain if discrimination results when one regards the issue from an objective perspective. To answer that, the court, applying Law, supra, must consider "all of that individual's or that group's traits, history, and circumstances" and evaluate "whether a reasonable person in circumstances similar to those of the applicant would find that the policy which imposes differential treatment has the effect of demeaning the Applicant's dignity"?
[44] Dignity was defined in Law, supra in the following manner at paragraph 53:
What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?
(Underlining added)
[45] There is no set way for determining whether there is a violation of s. 15 of the Charter (as the citation in paragraph 26 from Law, supra indicates). Nonetheless, Law, supra suggests that in order to determine whether differential treatment amounts to discrimination, the court would be best advised to use the following four contextual factors in its analysis:
a) pre-existing disadvantage;
b) relationship between the grounds and the claimant's characteristics or circumstances;
c) ameliorative purpose or effects; and
d) nature of the interest affected.
[46] While these factors may be relevant in many cases, they appear to be of little assistance in this case. First, there is no ameliorative purpose or effect involved. Second, while neither party disputes a pre-existing disadvantage exists, and while its nexus to the policy or passports issued pursuant to it may be apparent to the Applicant from his subjective point of view, the nexus cannot be ascertained from an objective perspective. Third, the nature of the interest affected is minimal. The primary purpose of the policy and the passports issued pursuant thereto are to facilitate travel. This purpose is not affected by leaving out the country in which the Applicant believes Jerusalem is located. What then is the nature of the right affected? The right itself is quite vague given that the place of birth field is optional and can be left blank. It is the "right" to have one's passport display the country in which one was born. Whatever value one might attach to it, there is no evident nexus from an objective perspective to one's dignity or one's religion.
[47] The only factor, of the four listed in Law, supra, as stated in paragraph 45 above, that really applies in this case is b) the relationship between the ground upon which the claim is based and claimant's characteristics or circumstances.
[48] Let us recall that the Applicant has identified Canadians born outside Jerusalem as the appropriate comparator group. Thus, the question to be asked is the following: Would a Canadian, born outside Jerusalem, who is fully knowledgeable about Jewish history, Jewish religion, the historical and ongoing persecution of Jews worldwide, and aware of the central role that Jerusalem plays in the Jewish religion, consider the requirement that the Applicant's passport either display no place of birth or only Jerusalem demean the Applicant's dignity?
[49] Surely the answer has to be no, given that:
i) the policy and the passports issued pursuant thereto is silent as to religion;
ii) a passport is a means of intergovernmental communication identifying the bearer as a Canadian citizen and nothing more;
iii) persons of any other faith born in Jerusalem suffer the same fate; and
iv) neither the passport nor the policy behind it either directly or indirectly:
a) reflect a stereotypical application of presumed group or personal characteristics;
b) have the effect of perpetuating or promoting the view that the Applicant is less capable or worthy of recognition or value as a human being; or
c) have the effect of perpetuating or promoting the view that the Applicant is less capable or worthy of recognition or value as as a member of Canadian society, equally deserving of concern, respect, and consideration?
The policy behind the passport was adopted for geopolitical reasons and not in order to target any group. It also does not have the effect of so doing. There is simply nothing in the policy or the passport issued pursuant thereto that can be interpreted as relating to stereotyping, groups or personal characteristics. By no stretch of any reasonable imagination can the policy or a passport be interpreted as a ruling, a statement, or even an observation on the passport holder in terms of value or recognition as a human being. In short, there is nothing in the policy or the passport issued pursuant to it that in any objective way can be linked to the Applicant's dignity.
Summary
[50] Accordingly, I find that, on the basis of the Law test, that while the Canadian passport policy and passports issued pursuant thereto make a distinction between Canadians born in Jerusalem and those born elsewhere, that distinction cannot be considered in any way to amount to discrimination under s. 15 of the Charter.
[51] Passports constitute intergovernmental communications dealing with a person's identity in terms of citizenship. They usually also indicate his place of birth. However, passports do not deal with, nor are they a reflection of a person's roots, heritage or belief.
Issue iii): If there is a breach, is it saved by s. 1 of the Charter?
[52] Given the above findings that there is no breach of s. 2(a) or s. 15 of the Charter, there is no need to conduct a section 1 analysis.
Conclusion
[53] The Applicant has not made out a case establishing a violation of his Charter rights. Accordingly, this application cannot succeed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-149-05
STYLE OF CAUSE: Veffer v. The Minister of Foreign Affairs
INTERVENER: Canadians for Jerusalem
PLACE OF HEARING: Winnipeg, Ontario
DATE OF HEARING: April 11, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN, J.
DATED: May 1, 2006
APPEARANCES:
| Mr. David Matas
|
FOR THE APPLICANT(S) |
| Ms. Sharlene Telles-Langdon Mr. Robert Gosman Mr. Omar Siddiqui
|
FOR THE RESPONDENT(S) |
| Mr. Douglas Elliott Mr. Gabriel Fahel |
FOR THE INTERVENER |
SOLICITORS OF RECORD:
| MR. DAVID MATAS Winnipeg, Manitoba |
FOR THE APPLICANT(S)
|
| MR. JOHN H. SIMS Deputy Attorney General of Canada
|
FOR THE RESPONDENT(S) |
| ROY ELLIOTT KIM O'CONNOR LLP Toronto, Ontario |
FOR THE INTERVENER |