Court File No. 21946

IN THE SUPREME COURT OF CANADA
(Appeal from the Federal Court of Appeal)

BETWEEN:

THE CANADIAN COUNCIL OF CHURCHES

Appellant

- and -

HER MAJESTY THE QUEEN AND
THE MINISTER OF EMPLOYMENT AND IMMIGRATION

Respondents

FACTUM OF THE INTERVENORS:

THE COALITION OF PROVINCIAL ORGANIZATIONS OF THE HANDICAPPED
AND
THE QUEBEC MULTI ETHNIC ASSOCIATION FOR THE INTEGRATION OF HANDICAPPED PEOPLE

ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
40 Orchard View Blvd., Suite 255
Toronto, Ontario
M4R 1B9

ANNE M. MOLLOY

(416) 482-8255

Solicitors for the Intervenors
The Coalition of Provincial Organizations of the Handicapped
and The Quebec Multi Ethnic Association for the Integration of Handicapped People

SACK GOLDBLATT MITCHELL
Barristers & Solicitors
Suite 1130 20 Dundas Street West
Toronto, Ontario
M5G 2G8

JAMES K. McDONALD
(416) 977-6070

Solicitors for the Appellant

JOHN C. TAIT, Q.C.
Deputy Attorney General of Canada
Department of Justice
239 Wellington Street
Ottawa, Ontario
L1A 0H8

(613) 957-4842

Solicitor for the Respondents

NELLIGAN/POWER
Barristers & Solicitors
1900 - 66 Slater S
Ottawa, Ontario
K1P 5H1

Catherine Aitken

(613) 238-8080

Ottawa agents for the Intervenors
The Coalition of Provincial Organizations of the Handicapped
and The Quebec Multi Ethnic Association for the Integration of Handicapped People

SOLOWAY, WRIGHT, HOUSTON,
GREENBERG, O'GRADY, MORIN
Barristers & Solicitors
99 Metcalfe Street
Ottawa, Ontario
K1P 6L7

(613) 782-3222

Ottawa Agents for the Appellant

TORY, TORY, DESLAURIERS & BINNINGTON
Barristers & Solicitors
Suite 3000, IBM Tower
P.O. Box 270, Toronto-Dominion Centre
Toronto, Ontario
M5K 1N2

MARY EBERTS
(416) 865-7307

And

DULCIE McCALLUM
Barristers & Solicitors
52 Wellington Ave.
Victoria, B.C.\V8V 4H6

Solicitors for the Intervenors
Women's Legal Education and Action Fund (LEAF)
and Canadian Disability Rights Council (CDRC)

NELLIGAN, POWER
Barristers & Solicitors
Suite 1900 66 Slater Street
Ottawa, Ontario
K1P 5H1

CATHERINE D. AITKEN
(613) 238-8080

Ottawa Agents for the Intervenors LEAF and CDRC

INDEX

Part I STATEMENT OF FACTS

Part II POINT IN ISSUE

Part III ARGUMENT AND Law

1. Novel and Fundamental Question of Law
   
   
2. Public Policy Considerations
   
   
3. Dismissing Claim for No Reasonable Cause of Action
   
   
4. The Position of the Intervenors
   
   
5. Reasons to Doubt Correctness - Statute Interpretation
   
   
   1. Sections 7,8,9,10,12 & 15 of the Charter
      
      
   2. Section 32 of the Charter
      
      
   3. Section 1 of the Charter
      
      
6. Reasons to Doubt Correctness - Discriminatory Criterion
   
   
7. Reasons to Doubt Correctness - Application of International Law
   
   
8. Conclusions

Part IV ORDER REQUESTED

LIST OF AUTHORITIES

Court File No. 21946

IN THE SUPREME COURT OF CANADA
(Appeal from the Federal Court of Appeal)

BETWEEN:

THE CANADIAN COUNCIL OF CHURCHES

Appellant

- and -

HER MAJESTY THE QUEEN AND
THE MINISTER OF EMPLOYMENT AND IMMIGRATION

Respondents

FACTUM OF THE INTERVENORS:
THE COALITION OF PROVINCIAL ORGANIZATIONS OF THE HANDICAPPED
AND
THE QUEBEC MULTI ETHNIC ASSOCIATION FOR THE INTEGRATION OF HANDICAPPED PEOPLE

PART I - STATEMENT OF FACTS

1. The facts relevant to the issues to be addressed by the intervenors the Coalition of Provincial Organizations of the Handicapped ("COPOH") and the Quebec Multi Ethnic Association for the Integration of Handicapped People ("Multi Ethnic") are as follows:
   
   

   1. The Canadian Council of Churches alleged in paragraph 15(b) of its Statement of Claim that certain criminal sanction provisions of the Immigration Act would deter lawyers from giving legal advice to refugees in another jurisdiction about how to access the Canadian refugee determination process and would thereby deny a person his/her right to counsel in violation of sections 7 and 10(b) of the Charter.

      Statement of Claim paragraph 15(b), Case on Appeal at 54 - 55 and 103 - 104.

   2. The defendant moved to strike the Statement of Claim pursuant to rule 419(1) of the Federal Court Rules on the grounds, inter alia, that it disclosed no cause of action.

      Notice of Motion, Case on Appeal, at 109 - 110.

   3. The defendant's motion was dismissed by order of the Honourable Mr. Justice Rouleau dated April 26, 1989. Mr. Justice Rouleau stated:

      In the case at bar, I am not satisfied that the defendants have succeeded in meeting the onus upon them of proving that the plaintiff's case will undoubtedly fail and the claim should accordingly be struck. The defendants' argument, that the allegations made by the plaintiff fall outside the protections and guarantees of the Charter as that statute has been interpreted to date, is in my view not a persuasive one. As I read the plaintiff's Statement of Claim, it raises serious, justiciable issues as to the constitutional validity of some of the provisions of the Immigration Act and the amending legislation, concerning refugee's right to council, arbitrary detention of certain classes of immigrants entering the country, a refugee's right to life, liberty and security of the person, and criminal sanctions imposed in some instances on those who assist refugees and immigrants, to name but a few.

      Reasons for Order of Mr. Justice Rouleau, Case on Appeal, at 134, lines 10 - 25.

   4. The Federal Court of Appeal reversed, in part, the decision of Mr. Justice Rouleau and struck out paragraph 15 of the Statement of Claim as disclosing no cause of action. The Court of Appeal held that the Canadian Council of Churches would have standing to litigate the issue raised in paragraph 15(b) of its Statement of Claim, but that this paragraph should nevertheless be struck out as the persons who would be denied the right to counsel would be "non-citizens outside Canada with no claim to admission and therefore beyond the scope of the Charter". No authority was cited by the Court of Appeal for this proposition.

      Reason of the Federal Court of Appeal, Case on Appeal at 175, lines 7 - 22.

   PART II - POINT IN ISSUE

2. Is a claim based on the premise that non-citizens outside Canada affected by Canadian law may at least in some circumstances be entitled to the protections of rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, so completely without chance of success that it should be dismissed on a preliminary motion as being incapable of founding a reasonable cause of action?
   
   
3. It is the position of COPOH and Multi Ethnic that the answer to this question is not plain, obvious or beyond doubt and that therefore the plaintiff's claim must proceed to trial. Given its great importance and the lack of legal precedent surrounding it, it is essential that the issue of the Charter's extraterritorial application receive thorough and careful analysis in the context of the fact situation of this case, rather than being decided summarily on a preliminary motion to strike.

   PART III - ARGUMENT AND LAW

   A. Novel and Fundamental Question of Law

4. The issue of the application of the Charter to non-citizens affected by Canadian law while outside Canada's territorial boundaries is novel in that it has not as yet been directly determined by the Court. This Court has, however, considered closely related issues in three cases: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. A., [1990] 1 S.C.R. 995; and Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
   
   

5. At issue in the Singh case was whether certain provisions of the Immigration Act relating to Convention refugees violated section 7 of the Charter. This Court considered the meaning of the word "everyone" in section 7 and concluded that it meant more than every citizen and at least included every person physically present in Canada. Madam Justice Wilson held in that case as follows:

   Section 7 of the Charter states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". Counsel for the appellants contrasts the use of the word "Everyone" in s. 7 with language used in other sections, for example, "Every citizen of Canada" in s. 3, "Every citizen of Canada and every person who has the status of a permanent resident of Canada" in s. 6(2) and "Citizens of Canada" in s. 23. He concludes that "Everyone" in s. 7 is intended to encompass a broader class of persons than citizens and permanent residents. Counsel for the Minister concedes that "everyone" is sufficiently broad to include the appellants in its compass and I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.

   Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 201 - 202.

6. It is notable that this Court in Singh did not foreclose the possibility of persons outside Canada having Charter rights. Rather, the emphasis was on the fact that persons amenable to Canadian law by virtue of their presence in Canada were entitled to Charter protection notwithstanding their lack of Canadian citizenship. This Court was not required to, and did not, determine whether persons subject to Canadian law, but not physically present in Canada, were protected by the Charter.
   
   

7. Also in Singh, albeit in obiter, this Court declined to follow an American line of cases holding that persons in the United States are entitled to due process, but people outside its borders are not. Madam Justice Wilson states:

   I must, however, acknowledge some reluctance to adopt (the) analogy from American law that persons who are inside the country are entitled to the protection of the Charter while those who are merely seeking entry to the country are not. In the first place, it should be noted that the presence in this country of four of the appellants who were refused entry when they arrived in Canada is due only to the fact that the Act provides for a mechanism for their release from detention. As Ms. Jackman" (counsel for the intervenors) "pointed out, a rule which provided Charter protection to refugees who succeeded in entering the country but not to those who were seeking admission at a port of entry would be to reward those who sought to evade the operation of our immigration laws over those who presented their cases openly at the first available opportunity.

   Singh v. Minister of Employment and Immigration [1985] 1 S.C.R. 177 at 210 - 211.

8. This Court determined in Andrews that citizenship, although not one of the enumerated grounds of discrimination set out in section 15 of the Charter, falls into an analogous category. Thus, legislation which discriminates on the basis of Canadian citizenship offends section 15 and, unless saved under section 1, is unconstitutional. As stated by Wilson J.:

   Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated…I would conclude therefore that non-citizens fall into an analogous category to those specifically enumerated in s. 15. I emphasize moreover, that this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society. While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others.

   Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 152 and also at 151, 182-183, 195-197.

9. In R. v. A. this Court held that the appellants, who were Canadian citizens living outside Canada, were entitled to Charter protection. Although this decision appears to be based on its own particular facts, it is significant that this Court recognized that, at least in some circumstances, the Charter will apply to people outside Canada. The Court was not required to, and did not, deal with the broader issue of Charter applicability to non-Canadians outside Canada. Mr. Justice Cory, for the majority, held:

   The unique and special facts of this case are such that the appeal should be allowed from the decision of the judge of first instance. In this case all the appellants were Canadian citizens. The R.C.M.P. undertook to provide protection for A, B and C. The undertaking was given in Canada where A was required to testify. It was due in part of the decision of the R.C.M.P. that B and C found themselves outside Canada when the application was brought. In those circumstances the judge was in error both in failing to consider the safety of the appellants and in finding that in the special circumstances of this case remedies were not available to persons who were out of the country. The application must be reheard.

   R. v. A., [1990] 1 S.C.R. 995 at 998 - 999

10. In Dolack v. Minister of Manpower and Immigration, a pre-Charter decision of the Federal Court of Appeal, the question of the application of the Canadian Bill of Rights to a non-citizen outside Canada was touched upon. Mr. Dolack, an American, sought an order compelling the Minister of Manpower and Immigration to issue a permit to allow his entry to Canada for the purpose of defending an action instituted by his wife pursuant to the Matrimonial Property Act of Saskatchewan. It was conceded that there was no procedural unfairness by the Minister, but Mr. Dolack argued that the Minister's discretion was fettered because of his property rights in Canada. The Federal Court of Appeal held that there was no such fetter on the Minister's discretion and further ruled:

    Nothing in the Canadian Bill of Rights expressly gives anyone a right to enter Canada and while we do not adopt the broad statement of the learned Trial Judge that paragraphs 1(a) and (b) and 2(e) of the Canadian Bill of Rights apply only to persons living in Canada and not to persons living out of Canada, we do not think that the rights defined by the Canadian Bill of Rights include any implied right to come into Canada for the purpose of securing the protection of property in Canada. (emphasis added)

    Dolack v. Minister of Manpower and Immigration, [1983] 1 F.C. 194 (F.C.A.) at 195.

11. Accordingly, the issue of the Charter's application to non-citizens outside Canada remains an open one. Rulings of this Court and the Federal Court of Appeal on related issues cannot be said to detract from the strength of an assertion that non-citizens outside Canada may have Charter rights at least in some circumstances.

    B. Public Policy Considerations

12. The issue of what limits there are, if any, on the extraterritorial application of the Charter is one of fundamental importance. The Charter is a measure and reflection of those values which we as a society hold dear and which are matters of public policy in our country. In addition, Canada, through the Charter, participates in the movement towards the protection of human rights and freedoms internationally and universally. As a free and democratic society within the universal community, it is public policy in Canada that individuals everywhere are entitled to basic human dignity and freedom. The Court has stated, in R. v. Oakes, that "the underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter" and that these values and principles "embody, to name but a few, inherent dignity of the human person, commitment to social justice and equality, 9 accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society". An issue is immediately raised as to whether it can possibly be consistent with these principles for Canada to deny the existence of Charter rights for people subject to its laws but beyond its borders. At the very least this is an issue of such fundamental importance and complexity that it deserves sober and extensive reflection. Multi Ethnic and COPOH submit that, at a minimum, it cannot be said that the plaintiff's position on this point is wholly devoid of merit such that its action should be dismissed without a trial.

    R. v. Oakes, supra, at 136.

    C. Dismissing Claim for No Reasonable Cause of Action

13. It is a well-established tenet of civil procedure that a claim should be struck out on a preliminary motion as disclosing no reasonable cause of action "only in plain and obvious cases and where the court is satisfied that 'the case is beyond doubt'". If the claim advanced has "some chance of success", the reasonable cause of action test is met and the claim should not be struck. The test to be applied is not whether the suit is truly founded in law but simply whether the plaintiff has an arguable case.

    A.G. Can. V. Inuit Tapirisat of Canada [1980], 2 S.C.R. 735 at 740.

    Operation Dismantle v. The Queen [1985], 1 S.C.R. 441 at 449 - 450

    Omninayak v. Canada (Minister of Indian Affairs and Northern Development, [1987] 3 F.C. 174 (T.D.) at 180 - 181 and at 182 - 183.

14. Arguable claims raising a novel question of law upon which there has not previously been a conclusive judicial determination should be permitted to proceed to trial so that they can be fully developed and considered. Such claims, particularly when they present fundamental issues of Charter interpretation and scope, should not be struck merely because they are novel, complex or without precedent. As stated by this Court in Hunt v. Carey Canada:

    Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect…should the relevant portions of a plaintiff's claim be struck out…

    Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 979 - 980

    Re Home Orderly Services Ltd. And the Government of Manitoba (1984), 12 C.R.R. 246 (Man. Q.B.)

15. The Constitution has been compared to "a living tree capable of growth and expansion within its natural limits". In order for the Charter to mature, courts must be vigilant not to restrict or stunt its growth. Failure to give full and careful consideration to the implications of restricting the scope of the Charter's extraterritorial application could result in the growth of the Charter being stunted in a manner inconsistent with the long-term interests of Canada and the world community. This Court's recognition of the need for thoughtful consideration of Charter issues is evidenced by its extensive analysis of the scope of section 32 of the Charter in Dolphin Delivery and of the meaning of section 15 in Andrews. This Court noted in Law Society of Upper Canada v. Skapinker:

    The fine and constant adjustment process of these constitutional provisions is left by tradition of necessity to the judicial bench. Flexibility must be balanced with certainty. The future must, to the extent forseeably possible, be accommodated in the present. The Charter is designed and adopted to guide and serve the Canadian community for a long time. Narrow and technical interpretation, if not modulated by a sense of the unknowns of the future, can stunt the growth of the law and hence the community it serves.

    Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 365 - 366

    Retail, Wholesale and Department Store Union Local 580 v. Dolphin Delivery Ltd. [1986] 2 S.C.R. 573.

    Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143

    D. The Position of the Intervenors

16. In summary, it is submitted that the fundamental importance of the issue of limits, if any, on the Charter rights of persons outside Canada mandates a thorough and careful examination of this issue rather than a summary dismissal on a preliminary motion.
    
    

17. It is further submitted that there is good reason to doubt the correctness of the Federal Court of Appeal's decision on this point and that at the very least there is sufficient merit to the plaintiff's claim in this regard that it should not be summarily dismissed as a clear and obvious example of no reasonable cause of action. However, the intervenors do not propose that this Court resolve the substantive issue of the applicability of the Charter to persons outside Canada in the context of this appeal. Indeed, it is respectfully submitted that it would be premature for the Court to reach a conclusion on this point at this preliminary stage in view of the absence of a complete evidentiary record, lack of opportunities to make full argument and the complex nature of the issue. However, the intervenors submit that there are credible arguments to support the plaintiff's contention that the Federal Court of Appeal was in error in its finding on this issue. What follows in the balance of this factum is a brief enumeration of some of the questions which must be considered before this issue can be properly or conclusively determined.

    E. Reasons to Doubt Correctness - Statute Interpretation

18. The text of the Charter, both in its plain and ordinary meaning and when viewed in the context of its purposes, suggests an intention on the part of its framers that the Charter it will apply to persons outside of Canada, at least in some circumstances.
    
    

19. It is a basic and elementary principle of statutory interpretation that words in a statute be given their plain and ordinary meaning unless doing so would result in an absurdity or defeat the purpose of the legislation.

    Driedger, Elmer A., Construction of Statutes, (2nd ed., 1983) at 87.

    Maxwell on the Interpretation of Statutes (12th ed., 1976) at 43.

    Re Robinson and Lumsden (1986), 57 O.R. (2d) 47 (Div. Ct.) at 50.

    Irwin Toy Limited v. Quebec (A.G.), [1989] 1 S.C.R. 927 at 1003-1004.

20. Further, it is well established that a purposive approach should be taken in interpreting the Charter and that it should be given a broad and liberal construction.

    Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 175.

    Hunter v. Southam Inc., [1989] 2 S.C.R. 145 at 155-157; 11 D.L.R. (4th) 641 at 650

    R. v. Turpin, [1989] 1 S.C.R. 1296 at 1332 - 1333.

    Beaudoin and Ratushny, The Canadian Charter of Rights and Freedoms, (2nd ed., 1989) at 22 - 28 and 62 - 63.

    (i) Sections 7, 8, 9, 10, 12 and 15 of the Charter

21. An express restriction in one part of a statute and the omission of such a restriction in another part of a statute implies that the restriction is not meant to apply in the latter situation ("expression unius est exclusion alterius"). Sections 7, 8, 9, 10 and 12 of the Charter are stated to apply to "everyone" and section 15 of the Charter applies to "every individual". These words in their plain and ordinary meaning are not restricted to citizens or to persons physically present in Canada. If the drafters of the Charter had intended that the protections guaranteed by these provisions be subject to citizenship or Canadian residence requirements, they could easily have so provided. Indeed, other sections of the Charter do contain such restrictions. For example:

    Section 6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

    Section 6(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

    1. to move to and take up residence in any province; and
    2. to pursue the gaining of a livelihood in any province.

    Section 20(1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institutions where

    1. there is a significant demand for communications with and services from that office in such language; or
    2. due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

    Sections 23(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in that language.
    (Emphasis added)

    The fact that the constitutional drafters specifically limited some Charter protections to citizens and others to persons "in Canada", and did not so limit other protections, suggests that "everyone" and "every individual" should be interpreted without reading in such restrictions.

22. A similar issue of constitutional interpretation was raised in the landmark Privy Council decision dealing with whether the word "persons" in section 24 of the British North American Act ("BNA Act") included women. This decision provides an illustration of the interpretive principle advanced by the intervenors which is that the conspicuous absence of excluding qualifiers may reflect an intention that a term be interpreted in an inclusive rather than exclusive manner. In finding that "persons" included both males and females the Privy Council placed considerable emphasis on the fact that other sections of the BNA Act explicitly referred to "males" rather than "persons". The Privy Council ruled:

    If Parliament had intended to limit the word "persons" in s. 24 to male persons it would surely have manifested such intention by an express limitation as it has done in ss. 41 and 84. The fact that certain qualifications are set out in s. 23 is not an argument in favour of further limiting the class, but is an argument to the contrary because it must be presumed that Parliament has set out in s. 23 all the qualifications deemed necessary for a Senator and it does not state that one of the qualifications is that he must be a member of the male sex.

    Re Section 24 of he B.N.A. Act; Edwards v. Attorney General for Canada, [1930] 1 D.L.R. 98 at 111, [1930] A.C. 124 (P.C.).

23. The Privy Council in the Edwards case noted that there were "no adjectival phrases so qualifying the word [persons] as to make it necessarily refer to males only" and further noted the importance of interpreting a constitutional document in a "large liberal and comprehensive spirit, considering the magnitude of the subjects with which it purports to deal in very few words". The Court then went on to hold:

    The word "persons" as above mentioned may include members of both sexes, and to those who ask why the word should include females, the obvious answer is why should it not. In these circumstances the burden is upon those who deny that the word includes women to make out their case.

    Re Section 24 of the B.N.A. Act, [1930] 1 D.L.R. 98 (P.C.) At 103, 107 and 108.

    (ii) Section 32 of the Charter

24. Section 32(1)(a) of the Charter provides:

    This Charter applies

    1. to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories;
    
    

25. The plain and ordinary meaning of section 32 is that all Canadian statutes are subject to the requirements of the Charter. There is nothing in the language used in section 32 to suggest that the application of the Charter is restricted to statutory provisions which have effect inside Canada's territorial boundaries or which relate only to persons physically present in Canada. Indeed, there is nothing to suggest that statutory provisions which apply only to persons outside Canada's territorial boundaries are not covered by the Charter. Rather, the Charter is simply stated to apply to all matters within the authority of Canadian governments.

26. A purposive interpretation of section 32 would require that all legislation created by Canadian governments be subject to Charter scrutiny. If the Charter were interpreted so as to absolutely preclude its application to non-citizens outside Canada, then Parliament would be completely free to enact laws which discriminate on grounds such as race, religion, sex, or disability or which deny fundamental civil liberties such as the right to life, liberty and security of the person, and able to excuse such offensive laws merely by establishing that the only persons affected by them are non-citizens outside Canada, rather than through the "reasonable limit" test of section 1 of the Charter. Such a result would undermine the Charter's purpose of requiring law makers to observe the rights and freedoms enshrined therein. This Court has stated:

    The Canadian Charter of Rights and Freedoms is a purposive document. It's purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms;

    Hunter v. Southam Inc. [1984] 2 S.C.R. 145 at 156; 11 D.L.R. (4th) 641 at 650.

    (iii) Section 1 of the Charter

27. An analysis of section 1 of the Charter is also supportive of the argument that there is no territorial limitation to the application of the Charter. Section 1 of the Charter states:

    English version:
    The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    French version:
    La Charter canadienne des droits et libertes garantit les droits et libertes qui y sont enonces. Ils ne peuvent etre restreints que par une regle de droit, dans des limites qui soient raisonnables et dont la justificaiton puisse se demontrer dans le cadre d'utre societe libre et democratique.

28. Section 1 of the Charter has two functions. First, it constitutionally guarantees the rights and freedoms set out in the provisions which follow. It should be noted that these rights and freedoms are guaranteed without express territorial or residency restrictions. In addition, section 1 establishes the justificatory criteria against which limitations on those rights and freedoms must be measured. Apart from the "notwithstanding clause" contained in section 33, the justificatory criteria set out in section 1 are exclusive.

    R. v. Oakes, [1986] 1 S.C.R. 103 at 135 - 136.

29. Section 1, taken as a whole, guarantees the rights and freedoms provided in the Charter subject only to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Reading into the Charter a further limitation on its applicability dependent upon citizenship or physical presence in Canada is inconsistent with the principle that the exclusive limitation of rights is provided in section 1. It is therefore submitted that limiting the application of the Charter to Canadian citizens and persons physically present in Canada can only be achieved by express limits on applicability within the Charter provisions themselves (which limits do not exist), or by means of express statutory limits, which it would be incumbent on the government to show as being demonstrably justified in a free and democratic society. With respect to the latter, the onus would be on the respondent to establish by evidence at trial that the section 1 test is met. Accordingly, it cannot be appropriate or correct in law to strike out the claim herein on a preliminary motion as disclosing no cause of action.

    Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 at 178.

    F. Reasons to Doubt Correctness - Discriminatory Criterion

30. Given that section 7 of the Charter was found by the Supreme Court of Canada in R. v. A. to apply to Canadian citizens resident outside Canada, it would be anomalous if Canadian citizens lost the right to challenge Canadian laws to which they are subject as being in violation of the Charter solely by virtue of the fact that they are at the time not resident in Canada. Thus, the primary distinction which is being made in the decision under appeal is not based on residency, but on citizenship. Further, given that this Court found in Andrews v. Law Society of British Columbia that laws which discriminate on the basis of citizenship violate the equality rights guaranteed by section 15 of the Charter, it would be anomalous, and arguably discriminatory, if the protection of Charter rights were available to Canadian citizens outside Canada but not to non-Canadian citizens.

    R. v. A. [1990] 1 S.C.R. 995.

    Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

    G. Reasons to Doubt Correctness - Application of International Law

31. As determined by this Court in Slaight Communications v. Davidson, the Charter should be interpreted as providing protection which is "at least as great as that afforded by similar provisions in international documents which Canada has ratified".

    Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 At 1056, 59 D.L.R. (4th) 416.

    Regina v. Videoflicks Ltd. et al (1984), 14 D.L.R. (4th) 10 (Ont. C.A.) at 35-36 and 46; 48 O.R. (2d) 395 at 420 and 431.

    International Fund for Animal Welfare, Inc. v. Canada, [1989] 1 F.C. 335 at 347-348.

32. Among Canada's international obligations is the International Covenant on Civil and Political Rights which came into force in Canada on August 19, 1976. Under this covenant, Canada undertakes to respect and ensure to all individuals "within its territory and subject to its jurisdiction" the rights recognized in the Covenant. Of particular relevance for purposes of this appeal are Article 2(1) of the Covenant and Article 1 of the Optional Protocol, which provide as follows:

    The Covenant
    2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

    Optional Protocol
    1 A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol.

    International Covenant on Civil and Political Rights, G.A. Res 2200 A (XXI), 21 U.N. GAOR, Supp. (Nov. 16) 52, U.N. Doc A/6316 (1966).

33. Many of the rights recognized in the Covenant are similar to rights guaranteed under the Charter. For example, Article 9(1) of the Covenant recognizes that "everyone has the right to liberty and security of the person". This is a right which every State Party to the Covenant undertakes pursuant to Article 2 to provide to all individuals "within its territory and subject to its jurisdiction". The right to "life, liberty and security of the person" is likewise guaranteed by section 7 of the Charter to "everyone". The word "everyone" in section 7 of the Charter must be taken to include everyone in Canada and everyone subject to Canada's jurisdiction if it is to be consistent with the Covenant. Logic dictates that the terms "everyone" and "every individual" should mean the same thing in each of the Charter sections in which they are used. Accordingly, it is submitted that there is a strong argument that all sections of the Charter giving rights to "everyone" or "every individual" should be interpreted as extending those rights to all persons subject to Canadian jurisdiction, even if not physically present in Canada.

    International Covenant on Civil and Political Rights, Articles 6(1), 9(1), 9(2), 9(3), 16, 18(1), 9(2) and 26.

34. The argument that the rights provided in the Charter and in the Covenant apply to persons subject to a state's jurisdiction even though not within its territory is enhanced by reference to Article 1 of the Optional Protocol. A State which is party to the Protocol (including Canada) recognizes that individuals "subject to its jurisdiction" who claim violation of Covenant rights may have their cases considered by the Human Rights Committee. The Human Rights Committee has recognized in Martins v. Uruguay that Article 1 of the Optional Protocol, taking account of Article 2(1) of the Covenant, applies to an individual residing abroad but subject to the jurisdiction of a party State for purposes of obtaining a passport. A similar provision of the European Convention of Human Rights and Fundamental Freedoms has been interpreted in like manner by the European Human Rights Commission which found that rights guaranteed by parties to everyone "within their jurisdiction" extends to persons affected by the authority and responsibility of the State in question "whether that authority is exercised within their own territory or abroad".

    Martins v. Uruguay, Communications No. 57/1979 (Human Rights Committee, March 23, 1982).

    Cyprus v. Turkey, Application No. 6780/74 and No. 6950/75, Decisions and Reports of the European Human Rights Commission, Vol. 2, p. 125, at 136.

    H. Conclusions

35. The importance of a legal principle cannot be measured by the number of words it represents in a particular judgment. The Federal Court of Appeal's ruling that people outside Canada with no legal entitlement to entry have no rights under the Charter is not in terms of its volume, a major part of the decision under appeal. The impact of this ruling is, however, of fundamental importance to a great number of persons both inside and outside Canada and is potentially devastating to many of them. The complexity of this issue and its implications for Canada nationally and internationally must not be underestimated. It is respectfully submitted that the interests of justice require a careful and thorough consideration of this issue and that these interests are not served by dismissing this action on a summary motion as not even representing a reasonable or arguable cause of action.

    PART IV - ORDER REQUESTED

36. The intervenors, COPOH and Multi Ethnic, seek an order that the appeal be allowed.

    ALL OF WHICH IS RESPECTFULLY SUBMITTED.

List of Authorities

1. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177
   
   
2. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 152
   
   
3. R. v. A., p1990] 1 S.C.R. 995
   
   
4. Dolack v. Minister of Manpower and Immigration, [1983] 1 F.C. 194 (F.C.A.)
   
   
5. R. v. Oakes, [1986] 1 S.C.R. 103
   
   
6. A.G. Can. v. Inuit Tapirisat of Canada [1980], 2 S.C.R. 735
   
   
7. Operation Dismantle v. The Queen [1985], 1 S.C.R. 441
   
   
8. Omninayak v. Canada (Minister of Indian Affairs and Northern Development), [1987] 3 F.C. 174 (T.D.)
   
   
9. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959
   
   
10. Re Home Orderly Services Ltd. and the Government of Manitoba (1984), 12 C.R.R. 246 (Man. Q.B.)
    
    
11. Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357
    
    
12. Retail, Wholesale and Department Store Union Local 580 v. Dolphin Delivery Ltd. [1986] 2 S.C.R. 573.
    
    
13. Driedger, Elmer A., Construction of Statutes, (2nd ed., 1983)
    
    
14. Maxwell on the Interpretation of Statutes (12th ed., 1976)
    
    
15. Re Robinson and Lumsden (1986), 57 O.R. (2d) 47 (Div. Ct.)
    
    
16. Irwin Toy Limited v. Quebec (A.G.), [1989] 1 S.C.R. 927
    
    
17. Hunter v. Southam Inc., [1989] 2 S.C.R. 145
    
    
18. R. v. Turpin, [1989] 1 S.C.R. 1296
    
    
19. Beaudoin and Ratushny, The Canadian Charter of Rights and Freedoms, (2nd ed., 1989) at 22 - 28 and 62 - 63
    
    
20. Re Section 24 of the B.N.A. Act; Edwards v. Attorney General for Canada, [1930] 1 D.L.R. 98; [1930] A.C. 124 (P.C.).
    
    
21. Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 at 1056, 59 D.L.R. (4th) 416.
    
    
22. Regina v. Videoflicks Ltd. et al (1984), 14 D.L.R. (4th) 10 (Ont. C.A.) at 35-36 and 46; 48 O.R. (2d) 395
    
    
23. International Fund for Animal Welfare, Inc. v. Canada, [1989] 1 F.C. 335
    
    
24. International Covenant on Civil and Political Rights, G.A. Res 2200 A (XXI), 21 U.N. GAOR, Supp. (Nov. 16) 52, U.N. Doc A/6316 (1966).
    
    
25. Martins v. Uruguay, Communications No. 57/1979 (Human Rights Committee, March 23, 1982)
    
    
26. Cyprus v. Turkey, Application No. 6780/74 and No. 6950/75, Decisions and Reports of the European Human Rights Commission, Vol. 2.