Date: 20091120
Docket: IMM-677-09
Citation: 2009 FC 1194
Ottawa, Ontario, November 20, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
BETHANY LANAE SMITH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Bethany Lanae Smith, is a 21-year old American citizen who claims refugee
protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).
She is a homosexual member of the U.S. Army, from which she has deserted. She alleges a fear of
persecution on the part of her colleagues and superiors because of her sexual orientation. She also
claims she would be personally facing a risk to her life or cruel and unusual treatment or
punishment if she were returned to the United States.
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[2] Her claim was rejected by the Refugee Protection Division of the Immigration and Refugee
Board (the “RPD”) in a decision dated February 2, 2009, on the ground that she had failed to seek
state protection which would have been adequate. Having thoroughly reviewed the applicant’s
record, as well as the oral and written submissions of both parties, I have come to the conclusion
that this application for judicial review ought to be allowed. Here are my reasons in support of that
conclusion.
BACKGROUND
[3] The applicant was born in Texas in 1988. At the age of 16, her father discovered her sexual
orientation and threw her out of his home. She then moved to Oklahoma to live with her mother.
[4] After completing her education, she held various jobs before deciding to join the Army to
make a better life for herself. She was promised by the recruitment officer that the Army would pay
for her college education and that she would have the opportunity to travel the world. She accepted
the offer.
[5] In September 2006, she passed the physical, medical and aptitude tests. When she met with
occupation personnel at the Military Entry Program Services, she made it clear that she did not want
to engage in combat. She enlisted for three years as a mechanic. Her contract stipulated that she had
no right to cancel it, although the Army could do so at any time. It also contained a waiver of the
“conscientious objector” status.
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[6] The applicant alleges that, since the recruitment process involved a considerable amount of
paperwork, she did not have an opportunity to read the contract itself. She also claims that when she
enquired about the meaning of the phrase “conscientious objector”, she was told that it was not
important and that she should simply fill out the forms. She also claims that she did not know about
the “Don’t Ask, Don’t Tell” policy towards homosexuals in the Army.
[7] In March 2007, she was sent to Fort Campbell in Kentucky and worked there as the only
female mechanic in the motor pool. She was harassed and insulted by other soldiers because she had
the appearance of a lesbian. The situation worsened when she was seen holding hands with another
woman in a public place. When her superiors became aware of this situation, they started treating
her harshly and giving her assignments that were incompatible with her medical condition. She also
received hundreds of handwritten notes that were posted on her dormitory door, containing threats
of beatings. In early June, she was particularly frightened by one note whereby she was threatened
to be murdered in her sleep.
[8] The applicant did not tell anyone about the notes, because she did not know whom she could
trust and whether she would be talking to authors of the notes. She did not confront her superiors
either, because they had treated her badly after rumours circulated about her sexual orientation. She
thought that they would not do anything to help her and she feared that higher ranking officers were
also behind those acts of harassment. She alleges that she destroyed all the notes.
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[9] During one of her medical examinations, she told the medical examiner about a soldier who
had grabbed her and thrown her to the ground. She did not disclose to the doctor that she was gay.
He brushed off the incident as simple horseplay on the part of companions-in-arms.
[10] The applicant feared that the death threat in the note she had received in early June could
become reality since, down the hall from her room, was the supplies room where the keys to all the
rooms were kept. She tried to obtain a discharge by frankly revealing to her superiors that she was a
lesbian. Her request was denied and the Sergeant ordered her not to speak to officers of higher rank
about it.
[11] There is no evidence that the applicant applied for conscientious objector status. This issue
appears to have been raised only at the time of her hearing before the Board, since nothing is
mentioned in that respect in her Personal Information Form (“PIF”).
[12] On September 9, 2007, fearing that her life was in danger, she fled from the base with
another soldier. After leaving the base, the applicant received an anonymous call, apparently from
her base, threatening to “kick a hole in her face” if she returned to Fort Campbell. Another soldier
from the base apparently sent her a text message saying that she deserved to be killed for deserting
the unit.
[13] The applicant entered Canada on September 11, 2007 and filed her refugee claim on
October 16, 2007.
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THE IMPUGNED DECISION
[14] The RPD did not question the applicant’s sexual orientation and found that she was a gay
person. The Board Member also recognized that harassment and violence against lesbian and gay
service members have been a source of concern. Reviewing the administrative and regulatory
prohibitions on military service by lesbian, gay and bisexual persons since World War I, the Board
Member then summarized briefly the compromise solution better known as the “Don’t Ask, Don’t
Tell, Don’t Pursue” policy that has been officially followed since 1993. That policy, to which was
added a directive explicitly banning harassment of lesbian and gay military personnel, was intended
to ease the ban on homosexuals in the military. It distinguished between “being gay” and “acting on
being gay”, allowing gay people to serve in the military provided that they did not engage in
homosexual conduct. As recognized by the Board Member himself, this policy has had mixed
results:
38. Some scholars have challenged the basis of the “Don’t Ask,
Don’t Tell, Don’t Pursue” policy, as not offering protection to gay or
lesbian military personnel from harassment or scrutiny. The success
of its translation into practices that curb such harassment has been
unclear and “[…] and reports since the adoption of the plan suggest
that sexual-orientation-base harassment continues to exist in the
military […] from derogatory terms against lesbian and gay persons
used in military training programs to incidents of severe violence,”
such as in the 1990 murder of Barry Winchell, a soldier who was
believed to be gay and who was beaten to death by a baseball bat
while he was asleep.
[It is worth noting that Private Winchell was murdered in 1999, not
in 1990, at Fort Campbell, the very base where the applicant was
posted]
[15] The Board Member ruled, on the basis of two decisions of this Court (Sadeghi-Pari, Fariba
v. Canada (Minister of Citizenship and Immigration), 2004 FC 282, and Dosmakova, Sofya v.
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Canada (Minister of Citizenship and Immigration), 2007 FC 1357) that a lesbian belongs to a
particular social group for the purposes of the phrase “Convention Refugee” and referred to a
guidance note prepared by the United Nations Refugee Agency (UNHCR) on sexual orientation and
gender identity. He noted, in particular, that “there is no duty to be “discreet” or to take certain steps
to avoid persecution, such as living a life of isolation, or refraining from having intimate
relationships” (para. 57). He then reviewed the documentary evidence provided by the applicant
about the situation of homosexuals in the U.S. Army.
[16] According to the RPD, there are two determinative issues in this case: first, whether the acts
of harassment and discrimination, even if not amounting to persecution individually, cumulatively
constitute persecution, and 2) whether the claimant has offered clear and convincing proof of the
state’s inability or unwillingness to protect her.
[17] As to her first claim, the applicant had to show that the U.S. Uniform Code of Military
Justice (“UCMJ”) would be applied to her in a discriminatory fashion or that the application thereof
would result in cruel and unusual treatment or punishment. For that purpose, she invoked the
affidavit of Donald G. Rehkopf Jr., an attorney who has 32 years of military law experience as a
prosecutor, defence counsel and acting Staff Judge Advocate. In essence, his testimony is to the
effect that the U.S. military judicial system is unfair to, and biased against homosexuals and soldiers
who go on Absence With Out Leave (“AWOL”). In his view, the court-martial process is stacked in
favour of the prosecution. On the basis of the information he received from the applicant’s counsel,
he opined that the applicant is in all probability facing a sentence of imprisonment of at least three
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years if deported to the U.S.; in that respect, he goes even much further than appellants’ counsel in
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 (as reported at
para. 40 of that decision), who had submitted that deserters face one to five years in prison. Citing
the American case law, Mr. Rehkopf is of the view that life imprisonment is a “practical and legal”
punishment for deserters in time of war.
[18] Mr. Rehkopf also asserted that the applicant cannot effectively defend herself against a
charge of desertion. If Ms. Smith were to plead mitigating circumstances (e.g. by arguing that her
desertion was due to scruples of conscience against war even though she had failed to obtain her
discharge as a conscientious objector), she could make a convincing case only by disclosing her true
reasons for leaving the Army. She would then find herself in deeper trouble, considering the climate
of prejudice against, the harassment and indeed the threats directed at military members who are
perceived as being non-heterosexual. Should she assert that her superiors ignored the threats made
against her, the military authorities will, in effect, punish her for revealing a very embarrassing truth
about the military. Moreover, she could face additional criminal charges for having had sexual
relations with a person of the same sex, in violation of Article 120 (”indecent act”) or Article 125
(“sodomy”) of the UCMJ.
[19] In short, Mr. Rehkopf believes that although the U.S. Army are able to protect the claimant,
they are not willing to do so because of their hostility and bias against lesbians and gays.
Considering the anti-gay/lesbian climate at Fort Campbell, finding fair and open-minded jurors on
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her court martial panel will be next to impossible, in his view, because anyone who showed
sympathy for her position would be challenged by the prosecution.
[20] The Board rejected Mr. Rehkopf's opinion and found it to be not credible. First, it
determined that it was based on a number of assumptions that were speculative at best. Moreover,
the Board Member noted that there is no evidence that a defence counsel has ever challenged the
“Don’t Ask, Don’t Tell” policy on the basis of a Supreme Court decision invalidating a Texas
statute making it a crime for two adults of the same sex to engage in consensual sodomy (Lawrence
v. Texas, 539 U.S. 538 (2003)). It is not clear what inference is to be drawn from this observation;
the Board Member may be suggesting that Articles 120 and 125 of the UCJM could well be
declared unconstitutional if challenged on behalf of the applicant.
[21] The Board Member also found that the Winchell murder was an isolated incident, and added
that he “suspected” the perpetrator(s) must have been sentenced to a lengthy term of imprisonment
and subjected to other severe penalties. As a result, he rejected Mr. Rehkopf’s opinion that there is
clear and convincing evidence of the state’s inability to protect the claimant.
[22] The Board also viewed the applicant’s situation as not distinguishable from that of Mr.
Hinzman, because both of them had formally claimed "conscientious objector" status and were
reluctant to engage in combat. In this respect, the Board did not accept as credible the applicant’s
evidence that she did not know what that phrase meant. On the contrary, the Member found that the
applicant voluntarily enlisted in the U.S. Army, and just like Mr. Hinzman developed an objection
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to the war in Iraq after having spent some time in the military. The Board Member determined that
there is no internationally recognized right to be a conscientious objector with respect to a specific
war (except in the specific cases provided for in paragraph 171 of the UNHCR Handbook). The fact
that the claimant may face prosecution upon return to the United States did not reveal a failure of
state protection or persecution on the basis of political opinion.
[23] The Board Member also rejected Mr. Rehkopf’s assessment of the court-martial process as
being biased, preferring to follow the Federal Court and the Federal Court of Appeal which have
both determined that the UCMJ as a law of general application, was not applied in a discriminatory
fashion.
[24] In concluding that prolix part of his reasons, the Board Member questioned the credibility
and expertise of Mr. Rehkopf. Referring to his statement that he has served as a prosecutor, defense
counsel and Acting Staff Judge Advocate and tried more than 225 cases, the Member challenged
Mr. Rehkopf’s honesty, and wondered how he could persist in prosecuting deserters if he was so
concerned about the inequities and unfairness of the military justice system.
[25] Commenting next on the disparities of sentences imposed by the Court Martial, the Board
Member noted that the requirement of uniformity has been abolished by the Court in 1959 (United
States v. Mamaluy, 27 C.M.R. 176 (1959)); it was recognized that consideration must given to the
individualized circumstances of the offenders. That being said, the Court of Criminal Appeals is
expected to ensure a minimal degree of uniformity in relation to sentencing, and Articles 85 and 86
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of the UCMJ set maximum punishment for desertion and AWOL in various circumstances. Such a
system allows deserters to be treated uniformly and to be spared any vindictiveness on the part of
the sentencing authority.
[26] The Board Member also noted that the applicant waited a little more than one month to file
her refugee claim. In his view, that delay was inconsistent with the situation of a refugee fleeing for
her life and with probable knowledge that Canada was a refuge for other members of the U.S.
military who had preceded her. While this was not held to be a determinative factor, it was
nevertheless taken into account as a factor relevant to the assessment of her subjective fear.
[27] Finally, the Board reiterated that an applicant is required to seek the protection of her or his
state where it might reasonably be forthcoming. In the case at bar, the applicant spoke to the First
Sergeant but did not make any attempts to seek help from higher authorities in her unit. The
Member dismissed her explanation that higher ranking officers were involved in the harassment that
she had suffered, characterizing this allegation as mere speculation. As for the argument that the
military criminal code discriminates against gays and lesbians and that the punishment would be the
result of an unfair process, it was also rejected on the basis of the Hinzman decision. The Board
Member refused to comment on the military court-martial system or on the “Don’s Ask, Don’t Tell”
policy, found that there was no credible evidence that the applicant would not receive a fair hearing
or would receive a more severe sentence because she is gay if she were to be prosecuted before a
court-martial, and relied on the evidence accepted in Hinzman that 94% of deserters have been dealt
with administratively and merely received a less-than honorary discharge from the military. Finally,
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the Board Member referred to newspapers articles according to which President Obama is about to
repeal the “Don’t Ask, Don’t Tell” policy and inferred that the “ammunition” currently used by
prosecutors in U.S. court-martials, in situations similar to that of the applicant, will then also be
“swept away”.
[28] In conclusion, the Board summed up its findings in the following paragraphs:
209. Having considered all of the evidences and the submissions of
the claimant’s counsel, I determine that the claimant has failed to
present “clear and convincing” proof of the inability of the United
States to protect her.
210. I also determine that the claimant has not satisfied her burden of
establishing a serious possibility of persecution on a Convention
ground or that it is more likely she would be tortured or face a risk to
her life or risk of cruel and unusual treatment or punishment upon
return to the United States.
211. A given episode of mistreatment may constitute discrimination
or harassment, yet not be serious enough to be regarded as
persecution. Indeed, a finding of discrimination rather than
persecution is within my jurisdiction. I find that the acts of
harassment and intimidation and written threats made against the
claimant do not constitute persecution in this particular case.
[29] As a result, the Board Member ruled that the applicant was not a “Convention” refugee
under section 96 of the IRPA or a “person in need of protection” within the meaning of section
97(1)(a) and (b) of the same Act.
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ISSUES
[30] Counsel for the applicant has raised a number of issues, which can be summarized as
follows:
a. Did the Board Member err in determining that state protection would be available
for the applicant? That question must be broken down into the following subquestions
:
i) Did the Board Member err in finding that the applicant did not seek state
protection?
ii) Did he make a speculative finding when he concluded that the murder of Private
Winchell was an isolated incident?
iii) Did he rely on extrinsic evidence taken from the decision of the Federal Court of
Appeal in Hinzman without giving the applicant an opportunity to respond?
b. Did the Board Member err in determining that the Uniform Code of Military Justice
as a law of general application, is not applied in a discriminatory fashion, that the
applicant would receive a fair hearing and that she would therefore be submitted to
prosecution and not to persecution? In coming to that conclusion, did the Board
Member err in not providing reasons as to why the expert evidence submitted on
behalf of the applicant was not credible?
ANALYSIS
[31] The RPD is an expert tribunal. As such, its findings of fact or of mixed fact and law are
reviewable according to a standard of reasonableness. The Board’s assessment of the adequacy of
state protection is a question of mixed fact and law which must accordingly be reviewed according
to a standard of reasonableness. The same is true of the question as to whether an individual faces
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persecution in his or her country of origin: Hinzman v. Canada (Minister of Citizenship and
Immigration), 2006 FC 420, at para. 199; 2007 FCA 171, at para. 38.
[32] On the other hand, the issues raised by the applicant that pertain to procedural fairness are
questions of law. Either the decision-maker has complied with the duty of fairness appropriate in the
particular circumstances, or has breached this duty: no deference is due when such an issue is raised.
See A.G. Canada v. Sketchley, 2005 FCA 404, paras. 52-53.
A) Did the Board Member err in determining that state protection would be available to the
applicant?
[33] The Federal Court of Appeal and the Supreme Court of Canada have made it clear that the
starting point in assessing the applicant’s claim consists in the examination of the adequacy of state
protection: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p 722; Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, at para. 42. Where state protection is
found to be adequate, it is not necessary for the Board to go any further. As the Federal Court of
Appeal stated in Hinzman:
The appellants say they fear persecution if returned to the United
States. However, to successfully claim refugee status, they must also
establish that they have an objective basis for that fear: Ward at p.
723. In determining whether refugee claimants have an objective
basis for their fear of persecution, the first step in the analysis is to
assess whether they can be protected from the alleged persecution by
their home state. As the Supreme Court of Canada explained in Ward
at page 722, “[i]t is clear that the lynch-pin of the analysis is the
state’s inability to protect: it is a crucial element in determining
whether the claimant’s fear is well-founded.” [Emphasis in original.]
Where sufficient state protection is available, claimants will be
unable to establish that their fear of persecution is objectively wellfounded
and therefore will not be entitled to refugee status. It is only
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where state protection is not available that the court moves to the
second stage, wherein it considers whether the conduct alleged to be
persecutory can provide an objective basis for the fear of
persecution…
See also: Colby v. Canada (Minister of Citizenship and
Immigration), 2008 FC 805; Landry v. Canada (Minister of
Citizenship and Immigration), 2009 FC 594.
[34] The case law is also to the effect that refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant has unsuccessfully
sought the protection of his home state. Absent a situation of complete breakdown of state
apparatus, it should be assumed that the state is capable of protecting a refugee claimant. To rebut
the presumption, an applicant must offer “clear and convincing confirmation of a state’s inability to
protect”: Ward, at pp. 724-725; Hinzman, at para. 44. If an applicant does not provide such clear
and convincing evidence, he cannot qualify as a Convention refugee or a person in need of
protection. In other words, proof must be adduced that all possible avenues of protection available
have been exhaustively sought before claiming refugee status. Speculation that state protection
would be inadequate is not sufficient.
[35] That being said, a refugee claimant has the obligation to seek out protection in his home
country only if that protection can be said to “reasonably have been forthcoming” (Ward, supra, at
p. 724). This is not meant to be an easy way out of the requirement that a refugee claimant approach
his home country for protection before seeking international refugee protection. As the Supreme
Court stated in Ward (at p. 724), “…the claimant will not meet the definition of “Convention
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refugee” where it is objectively unreasonable for the claimant not to have sought the protection of
his home authorities…”.
[36] Of course, the burden of the applicant is greater in this case as the country to which she is to
be returned is the United States, “a democratic country with a system of checks and balances among
its three branches of government”, and which “has adopted a comprehensive scheme to ensure those
who object to military service are dealt with fairly”: Hinzman, at paras. 46, 57.
[37] In the present case, the situation is quite distinguishable from the problems raised, before
this Court and the Court of Appeal, by a number of recent U.S. Army deserters, and most notably
Mr. Hinzman. The Board Member appeared, at times, to have focused on the applicant’s status as a
conscientious objector. Indeed, he wrote at para. 161 of his reasons:
It appears to me that the claimant’s situation is no different from
Hinzsman’s legal situation because both of them made a formal
claim of being a contentious [sic] objector and a reluctance to engage
in combat.
[38] To be fair, it is true that the applicant did mention in the narrative appended to her Personal
Information Form (PIF) that she did not know what the phrase “conscientious objector” meant, and
that it was not explained to her that one of the forms she was made to sign when she joined the army
was a waiver of her right to claim that right.
[39] But it is also equally clear when reading her narrative as a whole and the evidence submitted
to the Board that her situation was much different from that of Mr. Hinzman and that her claim was
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first and foremost predicated on her sexual orientation. Unlike Mr. Hinzman, she could be punished
not only on AWOL and desertion charges, but also for simply being gay. As already mentioned,
Article 125 of the Uniform Code of Military Justice still makes it an offense to have sexual relations
with a person of the same sex. This fundamental flaw in the Member’s reasoning, it seems to me,
permeates his entire approach to the case and certainly skewed, at least to some extent, his
perception of the nature of the applicant’s claim and predicament.
[40] Before weighing the various arguments made by counsel for the applicant, it is worth noting
that the Board did not make any adverse credibility findings with respect to the applicant. He found
that she was, indeed, a gay person, and there is no suggestion that she faked her sexual orientation to
be discharged from the Army. Nor did the Board Member make any unfavourable credibility
findings with respect to the harassment and threats that were directed at the applicant while a
Member of the United States Army.
[41] It is alleged that the first error made by the Board Member was in his determination that Ms
Smith did not seek state protection. The Board Member wrote:
She alleges she spoke to a sergeant asking permission from him to
speak to the First Sergeant to tell him about her being gay and
wanting to leave the army.
She did not make any attempts to seek the help of higher authorities
in her unit other than the sergeant.
A claimant is required to approach her or his state for protection in
situations which protection might reasonably be forthcoming. The
claimant must show that it was reasonable for her not to seek
protection. When asked why she did not seek protection from higher
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authorities at Fort Campbell, she replied: “]…] I considered it but did
not. I felt higher ranking officers were in on it”.
She gave no explanation as to why she thought the higher ranking
officers were involved. In fact, her evidence is that she tried to find
out who wrote the note threatening to kill her in her sleep by
comparing the signatures of fellow soldiers to other paperwork the
soldiers had signed, but was unable to ascertain with certainty who
wrote the note. It was speculation only on her part that higher
ranking officers were involved.
Reasons for Decision, at paras. 189-192.
[42] Contrary to the situation in Hinzman, where the appellants had not made an adequate
attempt to avail themselves of the protections afforded by the UCMJ, the applicant in this case
provided evidence that she did approach her superiors to try to obtain a discharge. According to the
evidence offered by the applicant, she went so far as to ask her superior for permission to speak to a
higher authority, but that was denied. She also testified that one superior scoffed at her and said they
would figure out the paperwork when she returned from her tour of duty in Afghanistan.
[43] The case law of this Court requires more than one attempt to obtain state protection. It is
often said that an applicant must usually follow up on his complaint, and seek assistance from
higher authorities if unsuccessful at the first stage. Yet, one must take into account the particular
environment that an applicant finds himself in. It is clear that in the Army reigns an atmosphere of
unconditional obedience to the hierarchy. The Board Member did not seem to be sensitive to this
special context.
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[44] Further, the applicant provided evidence that she was afraid that her superiors may have
been involved in the harassment and threats targeted at her. She had reasons to perceive her
superiors as being the potential authors or participants in the harassment and threats directed at her.
She stated in her PIF and in her testimony that she felt that she started receiving harsher treatment
from her superiors when they heard rumours that she was a lesbian. Moreover, one of her superiors
told her to “tone down her behaviour”, which the applicant believed was a reference to her sexual
orientation. Nonetheless, the Board Member found that the applicant’s belief to the effect that
higher ranking officers were involved was pure speculation. While such a finding is normally
entitled too much deference, it may nevertheless be questioned when the Board Member has not
considered all the evidence submitted by the applicant, especially when that evidence has remained
uncontradicted.
[45] What is more, the personal experience of the applicant seems to be consistent with the
documentary evidence indicating that superiors in the U.S. military are too often complacent and
sometimes even actively participate in the harassment and abuse directed at gays and lesbians in the
military. This evidence should also have been taken into account by the Board Member in assessing
whether the applicant adequately attempted to avail herself of the protection afforded by the state.
[46] This failure to give due consideration to that documentary evidence ties in with two other
errors allegedly made by the Board Member and which relate to the willingness of the state to afford
protection.
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[47] First, counsel for the applicant contended that the Board Member erred in speculating as to
the isolated nature of Private Barry Winchell murder, which took place in 1999. This murder was
clearly a watershed moment in the long struggle of gay, lesbian and bisexual persons to be fully
accepted in the U.S. Army. On July 5, 1999, Private Winchell was brutally beaten to death with a
baseball bat while sleeping outside his barracks room at Fort Campbell, Kentucky. Soldiers later
testified that Private Winchell had faced daily anti-gay harassment for more than four months prior
to his murder, on the basis of rumors that he was gay (“Conduct Unbecoming: Sixth Annual Report
on “Don’t Ask Don’t Tell, Don’t Pursue, Don’t Harass” by Servicemembers Legal Defence
Network, 2000; Exhibit “8” to the applicant’s affidavit).
[48] When evaluating the affidavit evidence of Mr. Rehkopf, the Board Member made the
following finding:
151. Mr. Rehkopf suggests further that because the US Army could
not protect Private First Class Barry Winchell, and a host of other
gay and lesbian service members who have been subjected to vicious
attacks and murder, that this is “clear and convincing” evidence of
the state’s inability to protect the claimant.
152. I do not accept his “opinion” as credible. The Winchell murder
was no doubt a brutal act but an isolated one. Although Mr. Rehkopf
makes no mention as to whether the perpetrator or perpetrators of
that act were charged and convicted of killing Winchell. I suspect
they must have been and were sentenced to lengthy periods in prison
and subjected to other severe penalties.
[49] This was clearly a speculative finding that was not open to the Board Member in the
absence of any evidence to support it. The Federal Court of Appeal held, in Canada (Minister of
Employment and Immigration) v. Satiacum, [1989] F.C.J. No. 505; 99 N.R. 171, that findings
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cannot be based upon evidence that is the “sheerest conjecture or the merest speculation”. The Court
delineated the difference between speculation and reasonable inference by stating:
The dividing line between conjecture and inference is often a very
difficult one to draw. A conjecture may be plausible but it is of no
legal value, for its essence is that it is a mere guess. An inference in
the legal sense, on the other hand, is a deduction from the evidence,
and if it is a reasonable deduction, it may have the validity of legal
proof. The attribution of an occurrence to a cause is, I take it, always
a matter of inference.
See also: Hassan Bedria Mahmoud v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 250; 61
A.C.W.S.(3d) 768, at para. 7; Bains v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1144, at para. 12.
[50] There was simply no evidence before the Board Member to support his finding that the
brutal murder of Private Winchell was an isolated incident, or that those who harass, threaten or
physically harm or kill gays and lesbians in the military are severely punished. Quite to the contrary,
the applicant submitted evidence that was to the opposite effect: namely, that the harassment and
violent attacks on gays and lesbians in the Army is systemic and commonplace in the American
military, and that immediate supervisors and unit commanders tolerate or are believed to tolerate
that behaviour to some extent.
[51] In a report commissioned by the Center for the Study for Sexual Minorities in the Military
(“The Practical and Conceptual Problems with Regulating Harassment in a Discriminatory
Institution”, U. of California, 2004; Exhibit 5 to the applicant’s affidavit), to which the Board
Member refers extensively in his reasons, it is indicated that the top of the chain of Command at
Fort Campbell did not issue a single statement condemning anti-gay conduct following Winchell’s
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murder, and even denied its existence. This senior ranking officer blamed the increase in gay
discharges on gays seeking a means to leave the Army, but was nevertheless promoted to Lieutenant
General, the second highest position in the Army. These specific findings are reported by the Board
Member at paragraphs 84 and 85 of his reasons.
[52] But it was not sufficient to summarize the evidence presented by the applicant. The Board
Member should have addressed that evidence and discussed it in his reasons, and could not content
himself with speculations that Private Winchell murder was just an isolated incident. This was all
the more important since the applicant had pointed out to the Board Member that she and Private
Winchell not only shared a perceived identity in sexual orientation, but that they were both based at
Fort Campbell. She also provided evidence that she received threats that she would be beaten with a
baseball bat in her sleep, just like Private Winchell. It was incumbent upon the Board Member, in
making his finding that Private Winchell’s murder was an isolated incident, to indicate why he did
not accept evidence to the opposite effect.
[53] This speculative finding of the Board Member is not innocuous. First of all, the evidence
offered by the applicant goes a long way to establishing her subjective fear of persecution as well as
the threat to her life. That evidence was also crucial to substantiate the objectiveness of her fear, and
the ability and willingness of the state to protect her. One must not loose sight of the fact that the
applicant could be returned to her unit and face the same threats that she had faced before pending
determination of the measures to be taken against her. Accordingly, I am of the view that the
Board’s failure to explain why this evidence was rejected was material to its decision. It is true that
Page: 22
the Board Member summarized at some length the evidence offered by the applicant, but he has by
no means considered it, let alone analyzed it and provided reasons for dismissing it.
[54] The Board Member made a second error when he relied on evidence not before him and
failed to give the applicant an opportunity to respond to that extrinsic evidence. Without even
mentioning his sources, the Board Member wrote:
While punishment for desertion can include imprisonment, the
evidence indicates that the majority of Army deserters in the United
States, for whatever reason, have not been prosecuted or courtmartialed
and that 94 percent of deserters have been dealt with
administratively and merely received a less-than honorary discharge
from the military.
[55] This evidence was clearly not before the Board Member, and appears to come directly from
the decision of the Federal Court of Appeal in Hinzman (at paras. 48 and 58). The respondent
submits that the Board could take notice of any generally recognized facts and any information or
opinion that is within its specialized knowledge. There are, however, a number of problems with
such a line of argument.
[56] First of all, I do not think this is the kind of facts the Board could take “judicial notice” of.
The test to determine whether a particular fact can be considered by a court without any proof has
been well summarized in the doctrine:
Judicial notice is the acceptance by a court, without the requirement
of proof, of any fact or matter that is so generally known and
accepted in the community that it cannot be reasonably questioned,
or any fact or matter that can readily be determined or verified by
resort to sources whose accuracy cannot reasonably be questioned.
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[…]
Judicial notice dispenses with the need for proof of facts that are
clearly uncontroversial or beyond reasonable dispute. Facts judicially
noticed are not proved by evidence under oath. Nor are they tested by
cross-examination. Therefore, the threshold for judicial notice is
strict: a court may properly take judicial notice of the facts that are
either: (1) so notorious or generally accepted as not to be the subject
of debate among reasonable persons; or (2) capable of immediate and
accurate demonstration by resort to readily accessible sources of
indisputable accuracy.
Paciocco & Stuesser, The Law of Evidence, 4th ed., Toronto, Irwin
Law, 2005, at p. 376.
[57] While rules of evidence must be relaxed before administrative tribunals, I do not believe that
this should be taken as license to accept in evidence controversial facts that have not been argued at
all, especially when these facts can be of material significance for the outcome of a case of such
vital importance for an applicant. The assertion that 94 percent of deserters have been dealt with
administratively is not “clearly uncontroversial or beyond reasonable dispute”. Nor is it a fact that
“is so generally known and accepted in the community” or can “readily be determined or verified”
by indisputable sources.
[58] Assuming that this kind of information could be considered within the specialized
knowledge of the Board, the applicant should have been advised that the Board intended to use that
knowledge and be given an opportunity to respond. Rule 18 of the Refugee Protection Division
Rules (S.O.R./2000-228) provides as follows:
Notice to the parties
18. Before using any
information or opinion that is
within its specialized
Avis aux parties
18. Avant d’utiliser un
renseignement ou une opinion
qui est du ressort de sa
Page: 24
knowledge, the Division must
notify the claimant or
protected person, and the
Minister if the Minister is
present at the hearing, and give
them a chance to
(a) make representations on
the reliability and use of the
information or opinion; and
(b) give evidence in support of
their representations.
spécialisation, la Section en
avise le demandeur d’asile ou
la personne protégée et le
ministre — si celui-ci est
présent à l’audience — et leur
donne la possibilité de :
a) faire des observations sur la
fiabilité et l’utilisation du
renseignement ou de l’opinion;
b) fournir des éléments de
preuve à l’appui de leurs
observations.
[59] Commenting on this Rule, this Court wrote in Isakova v. Canada (Minister of Citizenship
and Immigration), 2008 FC 149, at para. 16:
The purpose of Rule 18 is to enable a claimant to have notice of the
specialized knowledge and to give him or her the opportunity to
challenge its content and use in reaching a decision. Therefore, in
order for Rule 18 to be effective, the RPD member who declares
specialized knowledge must place on the record sufficient detail of
the knowledge so as to allow it to be tested. That is, the knowledge
must be quantifiable and verifiable.
See also: Habiboglu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1664; Sadeghi-Pari v. Canada (Minister of
Citizenship and Immigration), 2004 FC 282; Panuk v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1187.
[60] In the case at bar, the Board Member did not give notice to the applicant that he had
specialized knowledge with regards to the fact that 94 per cent of deserters are dealt with
administratively, and that he intended to rely on that information. He did not provide the source of
that information either, and the applicant was not afforded an opportunity to respond thereto.
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[61] In any event, I do not think that this particular information can be characterized as falling
within the specialized knowledge of the Board. The explanation, it seems to me, is more prosaic: the
Board Member simply "lifted" a finding made in a previous decision. This is clearly not acceptable,
as it is well established that a finding of fact must always based on the evidence submitted to the
decision-maker. As this Court has repeatedly stated, each case must be decided on its own facts.
Nowhere is this rule clearer than in matters pertaining to state protection. It has been held time and
again that it cannot be conclusively determined, on the basis of previous findings of state protection
(or lack thereof) pertaining to a particular case, that state protection exists or does not exist in a
particular country. The correct approach has been expressed as follows:
Second, it was not sufficient for the Board to simply "refer" to an
earlier decision of the Board for its state protection analysis. The
RPD may, as a matter of law, adopt another panel's analysis or
conclusion, but as I wrote in Olah v. Canada (Minister Citizenship
and Immigration), [2001] F.C.J. No. 623, at paragraph 25, a panel
cannot blithely incorporate findings of fact from other cases. In
Badul v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 440, at paragraph 25 my colleague Mr. Justice O'Reilly
wrote that reliance upon the findings of another panel must be
"limited, careful and justified". In Ali v. Canada (Minister
Citizenship and Immigration), [2004] F.C.J. No. 1755, I found that
the RPD could adopt the reasoning and findings of another case with
respect to similarly situated people in Pakistan where satisfied that
the facts and evidence regarding country conditions in the earlier
case were sufficiently close to the facts and evidence before the RPD
in the second case.
Shahzada v. Canada (Minister of Citizenship and Immigration) 2005
FC 1176, at para. 6. See also: Hassan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 601, at paras. 6-7; Santiago
v. Canada (Minister of Citizenship and Immigration) 2008 FC 247;
Arellano v. Canada (Minister of Citizenship and Immigration), 2006
FC 1265.
Page: 26
[62] It is worth pointing out that in Hinzman, counsel for the appellant disputed the statistics
relating to punishment for deserters on the basis that they were compiled prior to the
commencement of the most recent U.S. military action in Iraq. The Court of Appeal nevertheless
accepted the evidence indicating that the vast majority of Army deserters had not been prosecuted or
court-martialed because the appellants could not point to any contrary evidence. The Court was also
of the view that there was reason to believe the statistics would not have changed materially
following the outbreak of the war, since it is in the best interests of the military to accommodate
those who object to combat as they may be ineffective at best and are likely to spread their beliefs
among their colleagues.
[63] In the present case, the applicant submitted documentary evidence revealing sentencing
disparities for those convicted of desertion and going AWOL (Exhibit 18 to the affidavit of the
applicant). As well, the applicant offered evidence that the military was not discharging those
identifying themselves as gay or lesbian at the same rates as in the past, including a chart showing
recent statistics indicating a significant decrease in discharges of gays and lesbians since 2001, as
well as documentary evidence explaining that such decrease was due to the need for more personnel
for the wars that the United States is engaged in. Not only does this evidence tend to refute the
finding in Hinzman, but it also addresses a different fact situation than that examined in that case.
[64] In the light of the evidence that was before him and that had not been offered in Hinzman,
and considering that the applicant was claiming refugee status not on the basis of her conscientious
objection to the war but on the ground of her sexual orientation, the Board Member could not
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merely base his decision on a finding made in another context. It was incumbent upon him, at the
very least, to provide reasons as to why he nevertheless adopted that finding and discounted the
evidence tending to invalidate it submitted by the applicant. I therefore find that the Board Member
came to an unreasonable conclusion since he followed blindly a finding taken from another decision
and grounded on a completely different evidentiary basis.
[65] In view of these two errors (speculating about the isolated nature of Private Winchell murder
and following a finding in Hinzman that 94 per cent of deserters are dealt with administratively),
the argument that speculation is not enough when claiming that state protection could not
reasonably have been forthcoming cannot defeat the applicant's claim. In Hinzman, it will be
remembered, the Court held that no evidence had been offered to establish that the appellants would
not be afforded the full protection of the law. In the case at bar, while the applicant had (according
to Hinzman) a heavy burden of proof with respect to the presumption that the United States is
capable of protecting her, she did provide evidence (both in her own affidavit and testimony and in
a plethora of documents) in support of her allegations.
[66] As a result, I am of the view that the Board Member erred in two respects in determining
whether the applicant had an objective basis for her fear of persecution. First, he did not take fully
into account the evidence pertaining to the situation of gays and lesbians in the U.S. Army in order
to determine whether the applicant made an adequate attempt to avail herself of the protection
afforded in her country. Second, the Board Member erred in weighing that evidence, and thus drew
two unwarranted conclusions therefrom. These two errors were material in the Board Member’s
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decision. Even assuming the applicant could have pursued further her request to be discharged, it
was still open to her to demonstrate that she could not be required to seek out state protection since
it was unlikely to be forthcoming. In failing to properly assess the evidence before him, the Board
Member precluded that line of reasoning.
B) Did the Board Member err in finding that the applicant would be submitted to
prosecution and not to persecution?
[67] Although not required to do so, in view of his ruling as to the adequacy of state protection,
the Board Member nonetheless did proceed to examine the applicant’s claim that the application of
the Uniform Code of Military Justice upon her return to the United States would result in
persecution. To establish this claim, the applicant had to show that the relevant provisions of the
UCMJ would be applied to her in a discriminatory fashion or would result in cruel and unusual
punishment or treatment.
[68] To support her allegations in this respect, the applicant relied principally on the affidavit of
Mr. Rehkopf, an attorney at law who had 32 years of military law experience both as prosecutor,
defence counsel and acting Staff Judge Advocate. Yet, after reviewing Mr. Rehkopf’s evidence
(with which he disagreed on a number of points), the Board Member questioned his credibility in
the following manner:
173. I find of interest that Mr. Rehkopf states in his affidavit that he
entered active duty in the Air Force in 1976 as a Judge Advocate;
“[…] that he served in active duty from 1976 to 1981 as an
Assistant Staff Judge Advocate […] and he has 32 years
“military law experience” as a prosecutor, defense counsel
and Acting Staff Judge Advocate. He has tried in excess of
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225 cases to a verdict. The majority of them being military
courts-martial […]”
174. He does not indicate how many times he acted as the
prosecutor in those 225 plus cases. If Mr. Rehkopf was so concerned
about the inequities of the military justice system in so far as it
relates to homosexuality in the armed forces, one wonders why, if he
acted as a prosecutor in such military claims, that he was able to
control his emotions or continue on with those prosecutions of
deserters (assuming that some of the members included issues of
homosexuality) in light of what he now says about the injustices and
Draconian sentences handed out by the Court-Martial judges in
situations in which the claimant now finds herself in.
[69] This unfavourable finding as to credibility is problematic in a number of ways. The
respondent is correct to point out that Mr. Rehkopf was not qualified as an expert by the Board, and
had no firsthand knowledge of the applicant or of her exact circumstances. That being said, I am of
the view that his affidavit was not just a lay opinion which the board could reject without providing
reasons for doing so. Mr. Rehkopf obviously had a long experience as a military lawyer and has
acted as defense counsel, prosecutor and judge for many years. It was open to the Board, of course,
to prefer other evidence to that provided by Mr. Rehkopf. The problem is that the Board Member
discounted his experience and expertise without providing reasons or referring to adverse evidence.
Indeed, there was no evidence whatsoever before the Board refuting the evidence of Mr. Rehkopf.
[70] The Board Member aptly noted that Mr. Rehkopf made some assumptions in his affidavit
which must be dismissed as speculative. This is a fair comment, although he offered only one single
example of such an assumption. It might have been helpful if he had specified those other
assumptions which he found unwarranted, as there is obviously a fine line between offering an
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opinion and making unsubstantiated assumptions. Moreover, the Board Member himself engaged in
speculation (when he stated that the murder of Private Winchell was an isolated act) to attack Mr.
Rehkopf’s credibility. Similarly, he seemed to assume that the “Don’t Ask, Don’t Tell” policy, if
challenged, would be declared unconstitutional. Not only is this assumption, at best, highly
questionable (the Board Member offers no legal analysis to support that view), but it is irrelevant to
determine how the applicant would be treated, in the meantime, if returned to the United States.
Finally, he quoted from a newspaper article published after the hearing, according to which
President Obama was expected to repeal the “Don’t Ask, Don’t Tell” policy, and inferred that this
would “sweep away” most if not all of the ammunition presently used by prosecutors in U.S. courtmartials
in situations similar to those the applicant finds herself in. Once again, this reference was
totally inappropriate as it was purely speculative and did not change the law as it stood at the time
the Board Member rendered his decision.
[71] The only reason provided by the Board Member to dismiss Mr. Rehkopf’s affidavit is the
apparent inconsistency between the position he now takes and the fact that he worked as a
prosecutor in cases of desertion. While this may validly raise questions as to the motives underlying
Mr. Rehkopf’s testimony, it is not sufficient, in and of itself, to undermine his opinions. In fact, one
could even argue that it makes his opinion all the more compelling, since he had the advantage of
seeing firsthand not only what the black-letter law is but how it operates in practice. Mr. Rehkopf
was never cross-examined on his affidavit, and so we will never know how he reconciled the views
expressed in his affidavit with his past work experiences. It may well be, for example, that he never
had to deal personally with prosecutions of deserters involving issues of homosexuality, contrary to
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the groundless assumption made by the Board Member. I am therefore of the view that this attack
on his credibility was totally inappropriate, and was based, at least in part, on pure speculation.
[72] Counsel for the respondent suggested that the opinion of Mr. Rehkopf was dismissed
because he did not exhibit the degree of impartiality and objectivity necessary to render his
testimony reliable, assuming instead the role of an advocate. Using the same example as the Board
(i.e. Mr. Rehkopf’s assumption that the applicant will not be paid for a considerable time because
her pay records will have been “lost” and that she would be treated worse than drug dealers),
counsel argues that Mr. Rehkopf’s affidavit is that of an advocate as it is replete with speculations
and conjectures.
[73] Having read carefully the affidavit of Mr. Rehkopf, I am not prepared to go that far. As
previously mentioned, it is the role of an expert to offer an opinion on the basis of inferences drawn
from the facts. Of course, the accuracy and reliability of the underlying facts on which the opinion is
based will be crucial in determining the weight to be given to expert evidence. In the case at bar, the
Board Member not only found the applicant’s story credible, but failed to refute the facts upon
which the opinion of Mr. Rehkopf was based by referring to adverse evidence. While some
comments made by Mr. Rehkopf could properly be given little weight as they verged on advocacy,
this was clearly not sufficient to justify the outright rejection of his affidavit altogether.
[74] There is another, perhaps more fundamental, problem with this argument. Nowhere in his
reasons did the Board Member offer such an explanation for rejecting Mr. Rehkopf’s evidence. It is
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trite law that on judicial review, it is the reasons provided by the Board that are to be reviewed;
there is no room for ex post facto rationalization of the decision offered by the party wishing to have
that decision upheld.
[75] The same can be said with respect to the further argument made by the respondent that Mr.
Rehkopf’s opinion constituted a pronouncement on the questions that were to be ruled on by the
Board, such as the availability of state protection and persecution versus prosecution. The Board
Member quite correctly remarked that it was for him, and not for Mr. Rehkopf’s, to draw the line
between prosecution and persecution in the application of the UCMJ. Similarly, it was open to him
to find that, as a law of general application, the UCMJ is applied in a non-discriminatory fashion
and to reject Mr. Rehkopf's opinion in that respect. But nowhere did he write that he dismissed the
affidavit in its entirety because Mr. Rehkopf expressed an opinion on the mode of application of
domestic law. Indeed, that would have been excessive.
[76] Mr. Rehkopf did not offer an opinion as to whether the applicant is a refugee under
Canadian law. He did not purport to state categorically that the applicant would be persecuted if she
were to return to the United States either. Quite to the contrary, he acknowledged that it is not an
easy task to draw the line between prosecution and persecution, and simply described the situation
that she would likely face when she returned (see pp. 20 and 21 of his affidavit, Exhibit 20 of the
applicant affidavit). He also offered his opinion, based on American, Canadian and European law,
that the situation that Ms. Smith would face due to her sexual orientation is of the sort condemned
by the international community as contrary to basic rules of human conduct. I fail to see how these
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views stray from the appropriate purview of expert opinion. Mr. Rehkopf stayed clear of expressing
an opinion on the ultimate question to be ruled on by the Member.
[77] As for the views he expressed with respect to the decisions of this Court and the Federal
Court of Appeal in Hinzman, they were not inappropriate either. It is true that domestic law is not a
subject about which a Canadian court will receive opinion evidence: see R. v. Graat, [1982] 2
S.C.R. 819; Ugbazghi v. Canada (Minister of Citizenship and Immigration), 2008 FC 694, at para.
27. But that is not what Mr. Rehkopf did in his affidavit. He was well aware of that danger, and he
went out of his way to emphasize that he was not attempting to provide legal advice concerning
Canadian law (see footnote 11 of his affidavit). In fact, he purported to apply the requirements
spelled out in Hinzman with respect to state protection, and merely rejected the view that the UCMJ,
even though it is in theory a law of general application, is always applied in a non-discriminatory
fashion, first because the black-letter law is one thing and the application thereof may be a quite
different one, and second because it only applies to persons having actual military status. These are
opinions as to facts that do not detract from the legal principles espoused by this Court and the
Court of Appeal in Hinzman and that he was entitled to make on the basis of his experience and
expertise in American military law.
[78] Having dismissed the evidence presented by Mr. Rehkopf, the Board Member cited the
decision of the Federal Court of Appeal for the proposition that the UCMJ is a law of general
application that is applied in a non-discriminatory fashion, and also found that there was no credible
evidence that the applicant would not receive a fair hearing upon her return to the United States.
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Considering the evidence that was before him, I do not think that this was a finding that was
reasonably open to him.
[79] The duty of the Board was to determine whether the applicant would face persecution
should she be returned to her country. Paragraph 167 of the UNHCR Handbook states that “[f]ear of
prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded
fear of persecution under the definition”. But paragraph 168 goes on to say:
The person is clearly not a refugee if his only reason for desertion or
draft-evasion is his dislike of military service or fear of combat. He
may, however, be a refugee if his desertion or evasion of military
service is concomitant with other relevant motives for leaving or
remaining outside his country, or if he otherwise has reasons within
the meaning of the definition, to fear persecution.
[80] One of the exceptions outlined by the Handbook is found at paragraph 169 and refers to an
applicant who can establish some form of discriminatory mistreatment before, during or even after
military service. The Federal Court of Appeal implicitly referred to that exception in Hinzman, at
paragraph 31:
Finally, the Board considered whether the punishment the appellants
would face upon return to the United States would amount to
persecution. To establish this claim, the Board indicated that the
appellants would have to show that the relevant provisions of the
U.S. Uniform Code of Military Justice (“UCMJ”) would be applied
to them in a discriminatory fashion or would amount to cruel or
unusual treatment or punishment.
[81] In that case, the Court of Appeal eventually held that the UCMJ is a law of general
application applied in a non-discriminatory fashion. But that finding was made in a context where
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there were many provisions and procedural safeguards designed to ensure that conscientious
objectors can claim exemptions from military service or alternatives to combat, as is made clear at
paragraph 47 of that decision.
[82] The applicant’s claim is not simply that she is a conscientious objector and that she will be
punished if she returns. At the heart of the applicant’s claim is that she is a lesbian member of the
U.S. Army, who was harassed and threatened at the same base where a gay member of the Army
was beaten to death, and who feels she could not rely on her superiors to secure protection. She
fears that she could be punished for leaving an environment where her life is in danger.
[83] The duty of the Board Member was to determine whether she would suffer persecution as a
result of the relevant substantive law or of the process whereby the law would be applied to her. It
was not enough for the Board Member to state that he is “not in a position to defend or criticize”. It
is part and parcel of the assessment of a refugee claim to determine whether a claimant has a wellfounded
fear of persecution for reasons, inter alia, of her membership in a particular social group, if
he/ she is returned to his/her home country.
[84] The applicant provided evidence to the Board that the punishment she would be exposed to
under the court-martial process relates to a breach of a law that is in conflict with a fundamental
human right and therefore adversely differentiates on a Convention ground in its application. In
particular, the applicant is at risk of being court-martialed for the following crimes: “Absent
Without Leave”, “Desertion”, “Desertion to avoid hazardous duty” and/or “Indecent Act” (for
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engaging in homosexual behaviour) punishable under the UCMJ. Yet, there was evidence before the
Board Member that the Supreme Court of the United States has declared unconstitutional a state
statute making it a crime for two adults of the same sex to engage in consensual “sodomy”. The
UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity
(Exhibit 35 of the applicant’s affidavit) also provides that acts of physical, sexual and verbal abuse
and discrimination against gays and lesbians, when they go unpunished, may form the basis of a
refugee claim. Similarly, this Note adds that “[b]eing compelled to forsake or conceal one’s sexual
orientation and gender identity, where this is instigated or condoned by the State, may amount to
persecution” (at para. 12). This evidence could not simply be ignored by the Board Member and had
to be properly discussed and analyzed before he could conclude that the UCMJ was a law of general
application and applied in a non-discriminatory fashion.
[85] The Federal Court of Appeal has also recognized that an applicant may qualify as a
Convention refugee even if it is ruled that a law is prima facie of general application. This might be
the case, for example, if the law is selectively applied, or if the punishment or treatment provided
for in a law of general application is out of all proportion to the objective of the law: see Cheung v.
Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314, at paras. 16-17. The recent
decision of this Court in Rivera v. Canada (Minister of Citizenship and Immigration), 2009 FC 814,
provides a useful and vivid illustration of this principle. Accordingly, the Board Member could not
ignore the evidence suggesting unequal treatment for homosexuals before court-martials, both in the
exercise of the discretion to prosecute and in the sentencing. Similarly, there was evidence both in
the documentation before the Board Member and in the affidavit submitted by Mr. Rehkopf to the
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effect that military judges are not independent as they are part of the chain of command and depend
upon superior officers for promotions and subsequent assignments, that convening authorities
determine whether a member of the military will be prosecuted and select potential jurors, and that
there is no uniform or consistent method by which sentences are imposed on military personnel
convicted of AWOL or desertion. While these assertions appear to contradict the findings of the
Board and of the Federal Court of Appeal in Hinzman, it must be remembered that these findings of
fact were made on the basis of the evidence that was submitted by the parties in that case. In fact,
the Court of Appeal noted in Hinzman (at para. 49) that there was no evidence before the Board to
the effect that the military judges are not independent or that the procedure by which the law would
be applied to the applicant is discriminatory. Furthermore, Hinzman was decided in the specific
context of a claim based on conscientious objection and not on sexual orientation. It was therefore
the duty of the Board Member to assess the fairness of the court martial process in the light of the
particular set of facts and of the evidence that was before him.
[86] Pausing there, it seems to be commonly assumed to be inappropriate for this Court, or for
that matter any other Canadian court or administrative tribunal, to rule on the constitutionality of a
foreign statute or its compatibility with our own Charter of Rights and Freedoms. However, there is
authority for the proposition that a national court can indeed rule on the constitutionality of a foreign
statute, when proper evidence has been adduced either supporting or attacking the validity of a
statute, and when the issue of constitutionality arises incidentally in the course of the litigation: see
Estonian Cargo and Passenger S.S. Line v. S.S. Elise and Messrs. Laane and Baltser, [1948] Exch.
C.R. 435, at 451; and more recently Hunt v. T&C plc, [1993] 4 S.C.R. 289, at paras. 28-32. In the
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case at bar, the issue of the constitutionality of the relevant provisions of the UCMJ has not been
argued by the parties. Moreover, the resolution of that question is not necessary to the disposition of
this case in a judicial review context. I shall therefore refrain from making a ruling on that question.
That being said, even if restraint is called for when it comes to the constitutionality of foreign
legislation, the Board nevertheless had a duty to determine whether the UCMJ was, even though it
is prima facie a law of general application, enforced in a non-discriminatory fashion in the United
States, both substantively and procedurally.
[87] As a result of the foregoing, I come to the conclusion that the Board Member erred in
finding not only that the applicant had failed to present clear and convincing proof of the inability of
the United States to protect her, but also that she had not met her burden of establishing a serious
possibility of persecution on a Convention ground or that it is more likely than not that she would be
tortured or face a risk to her life or risk of cruel and unusual treatment or punishment upon return to
the United States. In view of the cumulative effect of the Board Member's errors in the assessment
of the evidence that was before him, his conclusions are unreasonable.
[88] The applicant has proposed the following two questions for certification:
i. Where an Applicant requests the Board Member to evaluate
evidence rebutting the presumption that the judicial process or laws
the Applicant would be subject to in her home country are not laws
of general application and therefore persecutory, does the Board
Member have an obligation to address it when making findings of
state protection?
ii. Does the Board Member have an obligation to provide an
analysis supported by evidence that trained, professional
observations brought to the Board by an expert are not credible?
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[89] It is to be noted that the applicant proposes these questions only in the event she is
unsuccessful in her judicial review. I agree with the respondent that this is a highly unusual and
inappropriate way of proceeding; if a question is truly a question of general importance
determinative of an appeal, its certification should not hinge upon the success or failure of one of
the parties.
[90] That being said, the rationale offered by the applicant in support of the certification of her
two proposed questions reads more like a further argument on the application for judicial review
than as a true justification for bringing these issues to the Court of Appeal. As I have already
canvassed in my reasons all the points raised by the applicant in her submissions relating to these
proposed questions, no additional comments are called for. Suffice it to say that they do not meet
the criteria set out in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994),
176 N.R. 4. As for the distinction between prosecution and persecution and the issue whether a
given law that is prima facie of general application is in fact susceptible of discriminatory
enforcement, the law has already been expounded by the Federal Court of Appeal in a number of
decisions and need not be revisited in the context of the case at bar. What makes this case somewhat
unusual is not so much the legal principles at stake, but the facts on which it turns. As such, the
proposed questions are not of the kind that transcends the interests of the immediate parties. For this
reason, I decline to certify them.
Page: 40
ORDER
This application for judicial review is allowed. No question of general importance is
certified.
"Yves de Montigny"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-677-09
STYLE OF CAUSE: BETHANY LANAE SMITH
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 8, 2009
REASONS FOR ORDER
AND ORDER: de Montigny J.
DATED: November 20, 2009
APPEARANCES:
Ms. Jamie Liew
FOR THE APPLICANT
Mr. Brian Harvey
FOR THE RESPONDENT
SOLICITORS OF RECORD:
GALLDIN LIEW
Barristers & Solicitors
Ottawa, Ontario
FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE RESPONDENT
Tuesday, November 24, 2009
Monday, November 23, 2009
Google Chrome OS info.
Google Chrome OS
Company / developer
Google Inc.
OS family
Unix-like
Working state
Developer source code releasedas Chromium OS
Latest stable release
None
Package manager
apt-get[1][2]
Supported platforms
x86, ARM
Kernel type
Monolithic (Linux)
Default user interface
Graphical (Web-based)
License
Open source
Google Chrome OS is an open source operating system designed by Google to work exclusively with web applications.[3] Announced on July 7, 2009, Chrome OS is set to have a publicly available stable release during the second half of 2010.[4] The operating system is based on Linux and targets specifically designed hardware.[5] The user interface takes a minimalist approach, resembling that of the Chrome web browser. Because the browser will be the only application residing on the device, Google Chrome OS is aimed at users who spend most of their computer time on the Internet.[6][7][8]
At a November 19, 2009 news conference, Sundar Pichai, the Google vice president overseeing Chrome, demonstrated an early version of the operating system, which included a desktop that closely resembled the Chrome browser, but with tabs for frequently used Web-based applications. The netbook running the operating system booted up in seven seconds, a time Google is working to improve.[9] On the same day, Google released Chrome OS's source code under open source licensing as Chromium OS.[10]
Contents[hide]
1 User interface
2 Architecture
3 Hardware
4 Market implications
4.1 Relationship to Android
5 See also
6 References
7 External links
//
[User interface
Design goals for Google Chrome OS's user interface include using minimal screen space by combining applications and standard Web pages into a single tab strip, rather than separating the two. Designers are considering a reduced window management scheme that would operate only in full-screen mode. Secondary tasks would be handled with "panels": floating windows that dock to the bottom of the screen for tasks like chat and music players. Split screens are also under consideration for viewing two pieces of content side-by-side. Google Chrome OS will follow the Chrome browser's practice of leveraging HTML 5's offline modes, background processing, and notifications. Designers propose using search and pinned tabs as a way to quickly locate and access applications.[11]
Architecture
Google announced that Google Chrome OS will feature a novel security architecture. According to Google's announcement, the company will be "going back to the basics and completely redesigning the underlying security architecture of the OS so that users don't have to deal with viruses, malware and security updates". [12]
Hardware
Google Chrome OS is intended for secondary devices like netbooks, not a user's primary PC,[9] and will only run on specifically designed hardware incorporating an x86 or ARM processor.[6] The OS is designed to run on solid state drives, which provide faster boot-up times, rather than on hard disk drives, which have larger storage capacity but comparatively lower performance. Lower capacity solid state drives can better accommodate Google Chrome OS because the operating system on a disk is 60 times smaller than Windows 7.[13]
Companies developing hardware for the operating system include Hewlett-Packard, Acer, Adobe, Asus, Lenovo, Qualcomm, Texas Instruments, Freescale[14] and Intel.[15]
[edit] Market implications
When Google announced the Chrome browser in September 2008 it was viewed[16] as a continuation of the battle between Google and Microsoft ("the two giants of the digital revolution").[17] As of 2009[update], Microsoft dominates the usage share of desktop operating systems.[17] and the software market in word processing and spreadsheet applications. The operating system dominance may be challenged directly by Google Chrome OS, and the application dominance indirectly through a shift to cloud computing.[17] According to an analysis by PC World,[18] Google Chrome OS represents the next step in this battle.
[edit] Relationship to Android
The successive introduction of Android and Google Chrome OS, both open source, client-based operating systems, has created some market confusion, especially with the former's growing success. Microsoft CEO Steve Ballmer accused his competitor of not being able to make up its mind. [19]. Google has downplayed this conflict, suggesting that the two operating systems address different markets, personal and mobile computing, which remain distinct despite the growing convergence of the devices. Co-founder Sergey Brin suggested that the two systems "will likely converge over time".[20]
[edit] See also
free software portal
Linux portal
Google Chrome
Azure
Gazelle
Jolicloud
Ubuntu One
Cloud
XPUD
References
^ "Adding a New Package (The Chromium Projects)". Chromium.org. http://www.chromium.org/chromium-os/how-tos-and-troubleshooting/add-a-new-package. Retrieved 2009-11-23.
^ "Package Management (The Chromium Projects)". Sites.google.com. http://sites.google.com/a/chromium.org/dev/chromium-os/how-tos-and-troubleshooting/add-a-new-package/package-management. Retrieved 2009-11-23.
^ Mediati, Nick (2009-07-07). "Google Announces Chrome OS". PC World. http://www.pcworld.com/article/168028/google_announces_chrome_os.html. Retrieved 2009-07-08.
^ Ahmed, Murad (2009-07-08), Google takes on Microsoft with Chrome operating system, Times Online, http://technology.timesonline.co.uk/tol/news/tech_and_web/article6665703.ece, retrieved 2009-07-08
^ Dylan F. Tweney (2009-11-19). "Gadget Lab Hardware News and Reviews Google Chrome OS: Ditch Your Hard Drives, the Future Is the Web". Wired. http://www.wired.com/gadgetlab/2009/11/google-chrome-os-ditch-your-hard-drives-the-future-is-the-web/. Retrieved 2009-11-22.
^ a b Womack, Brian (2009-07-08). "Google to Challenge Microsoft With Operating System". Bloomberg.com. http://www.bloomberg.com/apps/news?pid=20601087&sid=aTd2k.YdQZ.Y. Retrieved 2009-07-08.
^ Hansell, Saul (2009-07-08). "Would you miss Windows with a Google operating system?". New York Times. http://bits.blogs.nytimes.com/2009/07/08/would-you-miss-windows-with-a-google-operating-system/. Retrieved 2009-07-08.
^ Pichai, Sundar (2009-07-07). "Introducing the Google Chrome OS". Official Google Blog. Google, Inc.. http://googleblog.blogspot.com/2009/07/introducing-google-chrome-os.html. Retrieved 2009-07-16.
^ a b Helft, Miguel (November 19, 2009). "Google Offers Peek at Operating System, a Potential Challenge to Windows". New York Times. http://www.nytimes.com/2009/11/20/technology/companies/20chrome.html. Retrieved 20 November 2009.
^ Sengupta, Caesar (2009-11-19). "Releasing the Chromium OS open source project". Official Google Blog. Google, Inc.. http://googleblog.blogspot.com/2009/11/releasing-chromium-os-open-source.html. Retrieved 2009-11-19.
^ "The Chromium Projects: User Experience". Google. http://www.chromium.org/chromium-os/user-experience. Retrieved 21 November 2009.
^ Infosecurity magazine (2009-07-22). "Google promises 'the end of viruses' with Chrome operating system?". http://www.infosecurity-magazine.com/view/2646/google-promises-the-end-of-viruses-with-chrome-operating-system/.
^ {{cite weburl=http://www.computerworld.com/s/article/9141191/Google_Chrome_OS_will_not_support_hard_disk_drivestitle=Google Chrome OS will not support hard-disk driveslast=Mearianfirst=Lucas date=November 19, 2009 work=Computerworldaccessdate=21 November 2009}
^ Pichai, Sundar (2009-07-08). "Google Chrome OS FAQ". Official Google Blog. Google, Inc.. http://chrome.blogspot.com/2009/07/google-chrome-os-faq.html. Retrieved 2009-07-21.
^ Myslewski, Rik (2009-07-10). "Intel Cozying up to Google Chrome OS". The RegisterOSnews. http://www.osnews.com/story/21812. Retrieved 2009-10-03.
^ Rotem-Gal-Oz, Arnon. "Google Chrome -The browser is the new Desktop". http://www.rgoarchitects.com/nblog/2008/09/02/GoogleChromeTheBrowserIsTheNewDesktop.aspx. Retrieved November 20 2009.
^ a b c Keegan, Victor (10 July 2009). The Guardian. http://www.guardian.co.uk/commentisfree/2009/jul/10/google-chrome-microsoft Can Chrome steal Microsoft's shine?. Retrieved July 11, 2009.
^ Bertolucci, Jeff (July 10, 2009). "Google, Microsoft Invade Enemy Territory: Who Wins?". PC World. http://www.pcworld.com/article/168246/google_microsoft_invade_enemy_territory_who_wins.html. Retrieved July 11, 2009.
^ http://www.engadget.com/2009/07/14/steve-ballmer-calls-chrome-os-highly-interesting-says-google/
^ http://news.cnet.com/8301-30684_3-10402653-265.html
[edit] External links
Wikimedia Commons has media related to: Google Chrome OS
Official announcement
Google Chrome Blog
Google Chrome OS Live Webcast - November 19, 2009
The Chromium Project
Company / developer
Google Inc.
OS family
Unix-like
Working state
Developer source code releasedas Chromium OS
Latest stable release
None
Package manager
apt-get[1][2]
Supported platforms
x86, ARM
Kernel type
Monolithic (Linux)
Default user interface
Graphical (Web-based)
License
Open source
Google Chrome OS is an open source operating system designed by Google to work exclusively with web applications.[3] Announced on July 7, 2009, Chrome OS is set to have a publicly available stable release during the second half of 2010.[4] The operating system is based on Linux and targets specifically designed hardware.[5] The user interface takes a minimalist approach, resembling that of the Chrome web browser. Because the browser will be the only application residing on the device, Google Chrome OS is aimed at users who spend most of their computer time on the Internet.[6][7][8]
At a November 19, 2009 news conference, Sundar Pichai, the Google vice president overseeing Chrome, demonstrated an early version of the operating system, which included a desktop that closely resembled the Chrome browser, but with tabs for frequently used Web-based applications. The netbook running the operating system booted up in seven seconds, a time Google is working to improve.[9] On the same day, Google released Chrome OS's source code under open source licensing as Chromium OS.[10]
Contents[hide]
1 User interface
2 Architecture
3 Hardware
4 Market implications
4.1 Relationship to Android
5 See also
6 References
7 External links
//
[User interface
Design goals for Google Chrome OS's user interface include using minimal screen space by combining applications and standard Web pages into a single tab strip, rather than separating the two. Designers are considering a reduced window management scheme that would operate only in full-screen mode. Secondary tasks would be handled with "panels": floating windows that dock to the bottom of the screen for tasks like chat and music players. Split screens are also under consideration for viewing two pieces of content side-by-side. Google Chrome OS will follow the Chrome browser's practice of leveraging HTML 5's offline modes, background processing, and notifications. Designers propose using search and pinned tabs as a way to quickly locate and access applications.[11]
Architecture
Google announced that Google Chrome OS will feature a novel security architecture. According to Google's announcement, the company will be "going back to the basics and completely redesigning the underlying security architecture of the OS so that users don't have to deal with viruses, malware and security updates". [12]
Hardware
Google Chrome OS is intended for secondary devices like netbooks, not a user's primary PC,[9] and will only run on specifically designed hardware incorporating an x86 or ARM processor.[6] The OS is designed to run on solid state drives, which provide faster boot-up times, rather than on hard disk drives, which have larger storage capacity but comparatively lower performance. Lower capacity solid state drives can better accommodate Google Chrome OS because the operating system on a disk is 60 times smaller than Windows 7.[13]
Companies developing hardware for the operating system include Hewlett-Packard, Acer, Adobe, Asus, Lenovo, Qualcomm, Texas Instruments, Freescale[14] and Intel.[15]
[edit] Market implications
When Google announced the Chrome browser in September 2008 it was viewed[16] as a continuation of the battle between Google and Microsoft ("the two giants of the digital revolution").[17] As of 2009[update], Microsoft dominates the usage share of desktop operating systems.[17] and the software market in word processing and spreadsheet applications. The operating system dominance may be challenged directly by Google Chrome OS, and the application dominance indirectly through a shift to cloud computing.[17] According to an analysis by PC World,[18] Google Chrome OS represents the next step in this battle.
[edit] Relationship to Android
The successive introduction of Android and Google Chrome OS, both open source, client-based operating systems, has created some market confusion, especially with the former's growing success. Microsoft CEO Steve Ballmer accused his competitor of not being able to make up its mind. [19]. Google has downplayed this conflict, suggesting that the two operating systems address different markets, personal and mobile computing, which remain distinct despite the growing convergence of the devices. Co-founder Sergey Brin suggested that the two systems "will likely converge over time".[20]
[edit] See also
free software portal
Linux portal
Google Chrome
Azure
Gazelle
Jolicloud
Ubuntu One
Cloud
XPUD
References
^ "Adding a New Package (The Chromium Projects)". Chromium.org. http://www.chromium.org/chromium-os/how-tos-and-troubleshooting/add-a-new-package. Retrieved 2009-11-23.
^ "Package Management (The Chromium Projects)". Sites.google.com. http://sites.google.com/a/chromium.org/dev/chromium-os/how-tos-and-troubleshooting/add-a-new-package/package-management. Retrieved 2009-11-23.
^ Mediati, Nick (2009-07-07). "Google Announces Chrome OS". PC World. http://www.pcworld.com/article/168028/google_announces_chrome_os.html. Retrieved 2009-07-08.
^ Ahmed, Murad (2009-07-08), Google takes on Microsoft with Chrome operating system, Times Online, http://technology.timesonline.co.uk/tol/news/tech_and_web/article6665703.ece, retrieved 2009-07-08
^ Dylan F. Tweney (2009-11-19). "Gadget Lab Hardware News and Reviews Google Chrome OS: Ditch Your Hard Drives, the Future Is the Web". Wired. http://www.wired.com/gadgetlab/2009/11/google-chrome-os-ditch-your-hard-drives-the-future-is-the-web/. Retrieved 2009-11-22.
^ a b Womack, Brian (2009-07-08). "Google to Challenge Microsoft With Operating System". Bloomberg.com. http://www.bloomberg.com/apps/news?pid=20601087&sid=aTd2k.YdQZ.Y. Retrieved 2009-07-08.
^ Hansell, Saul (2009-07-08). "Would you miss Windows with a Google operating system?". New York Times. http://bits.blogs.nytimes.com/2009/07/08/would-you-miss-windows-with-a-google-operating-system/. Retrieved 2009-07-08.
^ Pichai, Sundar (2009-07-07). "Introducing the Google Chrome OS". Official Google Blog. Google, Inc.. http://googleblog.blogspot.com/2009/07/introducing-google-chrome-os.html. Retrieved 2009-07-16.
^ a b Helft, Miguel (November 19, 2009). "Google Offers Peek at Operating System, a Potential Challenge to Windows". New York Times. http://www.nytimes.com/2009/11/20/technology/companies/20chrome.html. Retrieved 20 November 2009.
^ Sengupta, Caesar (2009-11-19). "Releasing the Chromium OS open source project". Official Google Blog. Google, Inc.. http://googleblog.blogspot.com/2009/11/releasing-chromium-os-open-source.html. Retrieved 2009-11-19.
^ "The Chromium Projects: User Experience". Google. http://www.chromium.org/chromium-os/user-experience. Retrieved 21 November 2009.
^ Infosecurity magazine (2009-07-22). "Google promises 'the end of viruses' with Chrome operating system?". http://www.infosecurity-magazine.com/view/2646/google-promises-the-end-of-viruses-with-chrome-operating-system/.
^ {{cite weburl=http://www.computerworld.com/s/article/9141191/Google_Chrome_OS_will_not_support_hard_disk_drivestitle=Google Chrome OS will not support hard-disk driveslast=Mearianfirst=Lucas date=November 19, 2009 work=Computerworldaccessdate=21 November 2009}
^ Pichai, Sundar (2009-07-08). "Google Chrome OS FAQ". Official Google Blog. Google, Inc.. http://chrome.blogspot.com/2009/07/google-chrome-os-faq.html. Retrieved 2009-07-21.
^ Myslewski, Rik (2009-07-10). "Intel Cozying up to Google Chrome OS". The RegisterOSnews. http://www.osnews.com/story/21812. Retrieved 2009-10-03.
^ Rotem-Gal-Oz, Arnon. "Google Chrome -The browser is the new Desktop". http://www.rgoarchitects.com/nblog/2008/09/02/GoogleChromeTheBrowserIsTheNewDesktop.aspx. Retrieved November 20 2009.
^ a b c Keegan, Victor (10 July 2009). The Guardian. http://www.guardian.co.uk/commentisfree/2009/jul/10/google-chrome-microsoft Can Chrome steal Microsoft's shine?. Retrieved July 11, 2009.
^ Bertolucci, Jeff (July 10, 2009). "Google, Microsoft Invade Enemy Territory: Who Wins?". PC World. http://www.pcworld.com/article/168246/google_microsoft_invade_enemy_territory_who_wins.html. Retrieved July 11, 2009.
^ http://www.engadget.com/2009/07/14/steve-ballmer-calls-chrome-os-highly-interesting-says-google/
^ http://news.cnet.com/8301-30684_3-10402653-265.html
[edit] External links
Wikimedia Commons has media related to: Google Chrome OS
Official announcement
Google Chrome Blog
Google Chrome OS Live Webcast - November 19, 2009
The Chromium Project
Sunday, November 22, 2009
COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games,
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games,
2009 BCCA 522
Date: 20091120
Docket: CA037306
Between:
Anette Sagen, Jenna Mohr, Lindsey Van, Jessica Jerome,
Ulrike Grassler, Monika Planinc, Marie-Pierre Morin, Karla Keck,
Nathalie De Leeuw, Katherine Willis by her Litigation Guardian Jan Willis,
Jade Edwards, Zoya Lynch by her Litigation Guardian Sarah Lynch,
Charlotte Mitchell by her Litigation Guardian Miriam Mitchell
and Meaghan Reid by her Litigation Guardian Nina Hooper-Reid
Appellants
(Plaintiffs)
And
Vancouver Organizing Committee for the 2010Olympic and Paralympic Winter Games
Respondent
(Defendant)
Before:
The Honourable Madam Justice Rowles
The Honourable Mr. Justice Frankel
The Honourable Mr. Justice Groberman
On appeal from the Supreme Court of British Columbia, July 10, 2009,
(Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCSC 942, S083619)
Counsel for the Appellants:
D.R. Clark, Q.C.
J. D. Horswill
M. B. Gehlen
Counsel for the Respondent:
G. K. Macintosh, Q.C.
T. A. Dickson
Place and Date of Hearing:
Vancouver, British Columbia
November 12 &13, 2009
Place and Date of Judgment:
Vancouver, British Columbia
November 13, 2009
Date of Reasons:
November 20, 2009
Written Reasons of the Court
Reasons for Judgment of the Court:
I. Introduction
[1] The appellants, all highly-ranked women ski jumpers, brought an application against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“VANOC”) seeking the following declaratory order:
If VANOC plans, organizes, finances and stages ski jumping events for men in the 2010 Winter Olympic Games, then a failure to plan, organize, finance and stage a ski jumping event for women violates their equality rights, as guaranteed in section 15(1) of the Canadian Charter of Rights and Freedoms, and is not saved under s. 1.
[2] There were two central issues in the court below: (1) under s. 32 of 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, does the Charter apply to the claim of gender discrimination advanced by the appellants against VANOC? (2) if so, then is VANOC breaching section 15(1) of the Charter by staging men’s, but not women’s, ski jumping events at the 2010 Olympic Games?
[3] The trial judge found that hosting and staging the 2010 Olympic and Paralympic Winter Games was a governmental activity being performed by VANOC and that VANOC was, therefore, subject to the Charter. Nevertheless, the judge dismissed the appellants’ application on the ground that “only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter” (at para. 123). The judge’s reasons are indexed at 2009 BCSC 942.
[4] The error in judgment put forward by the appellants takes as its starting point two of the trial judge’s conclusions: (1) that VANOC is carrying out a governmental activity in hosting and staging the 2010 Games, and (2) that the staging of ski jumping events for the 2010 Games is a benefit of the law. The appellants submit that these conclusions are grounded in findings of fact entitled to deference. The error in judgment, as stated in the appellants’ factum, is as follows:
Having found that:
(a) VANOC is carrying out a government activity in hosting the Games,
(b) the hosting of ski jumping events for the Games is a benefit of the law,
(c) VANOC is hosting ski jumping events for men but not for women, and
(d) this differential treatment of the Appellants discriminates against them in a substantive sense,
the Trial Judge erred in law when she further concluded that the Appellants’ rights under s. 15(1) of the Charter are not violated by VANOC’s hosting of only men’s ski jumping events, and that they are not entitled to a declaration to that effect.
[5] While VANOC supports the trial judge’s order dismissing the appellants’ application, it departs from the judge’s legal analysis to arrive at the same result.
[6] After hearing oral argument, we dismissed the appeal with reasons to follow. We have concluded that the Charter does not apply to the selection of events for the 2010 Olympic Games and that, even if the Charter did apply, the failure to include the women’s ski jumping event would not constitute a breach of s. 15(1). Our reasons for so concluding follow.
II. Background
[7] The Olympic Movement, which was founded in 1894, is the descriptor used to denote the organizations and individuals involved in the Olympic Games. The ultimate governing authority of the Olympic Movement is the International Olympic Committee (“IOC”), a non-governmental, not-for-profit organization with headquarters in Switzerland.
[8] The Olympic Charter, which codifies the Movement’s fundamental principles and rules, states:
The Olympic Movement is the concerted, organised, universal and permanent action, carried out under the supreme authority of the IOC, of all individuals and entities who are inspired by the values of Olympism. It covers the five continents. It reaches its peak with the bringing together of the world’s athletes at the great sports festival, the Olympic Games. Its symbol is five interlaced rings.
[Emphasis added.]
[9] The Olympic Movement includes International Federations (“IFs”), which administer sports at the world level and which actually run the events at the Olympic Games; National Olympic Committees (“NOCs”), which are non-governmental ambassadors of the Olympic Movement in each country and which select and manage each national team at the Olympic Games; and Organizing Committees (“OCOGs”), such as VANOC, which plan, organize, finance and stage their respective editions of the Games. All of these organizations are under the supreme authority of the IOC and must abide by the Olympic Charter. As one of the “Fundamental Principles of Olympism” in the Olympic Charter states: “Belonging to the Olympic Movement requires compliance with the Olympic Charter and recognition by the IOC.”
[10] Rule 6(3) of the Olympic Charter states that “[t]he authority of last resort on any question concerning the Olympic Games rests with the IOC.” Rule 7(1) of the Olympic Charter makes clear that ownership of the Olympics lies exclusively and firmly with the IOC. Not only does the IOC govern the Olympic Games, it also owns all of the intellectual property associated with them. The marketing of that brand through exclusive sponsorships, ticketing and broadcast revenues funds the Games.
[11] While it owns and controls the Olympic Games, the IOC does not itself organize them. Instead, the IOC chooses a Host City, and that City, along with the relevant NOC, is required to incorporate an OCOG, which in turn organizes the Olympic Games under the IOC’s direction. The IOC permits the OCOG to use the Olympic brand for this purpose, pursuant to a standard agreement known as a Host City Contract, which it requires each OCOG to sign.
[12] On 14 November 2002, the federal, provincial and two local governments (Vancouver and Whistler), the Canadian Olympic Committee, the Canadian Paralympic Committee and the Vancouver 2010 Bid Corporation entered into an agreement, the goal of which was to have Vancouver chosen as the Host City for the 2010 Games. That agreement, styled the Multiparty Agreement for the 2010 Winter Olympic and Paralympic Games (“Multiparty Agreement”), reflects various requirements of the IOC, and recognizes the supreme authority of the IOC in relation to the Games. The Multiparty Agreement requires incorporation of an OCOG to host and stage the Games should the bid be successful.
[13] On 2 July 2003, the IOC selected Vancouver as the Host City for the 2010 Games. After the bid was accepted by the IOC, VANOC was incorporated federally as a non-profit corporation responsible for staging those Games. On 20 October 2003, the City of Vancouver, the Canadian Olympic Committee and VANOC entered into the Host City Contract for the XXI Olympic Winter Games in the Year 2010 (“Host City Contract”).
[14] It is the marketing of the IOC’s intellectual property rights that pays for VANOC’s $1.75 billion operating budget. Through the licence granted to it by the IOC, VANOC is able to earn substantial sums in corporate domestic sponsorships and in ticketing. The IOC directly contributes approximately $450 million to VANOC in broadcast revenues and about $200 million from its international sponsorship program.
[15] The IOC closely controls OCOGs, including VANOC. Given that the IOC is licensing its intellectual property to OCOGs, such extensive control is not surprising. In paragraphs 35 to 40 of her reasons, the judge detailed some of that control. She found that the IOC exercises “day-to-day control” over VANOC and has “control over the minute details of VANOC’s operations in planning and staging the 2010 Games”.
[16] The “Olympic Programme” refers to the slate of sports, disciplines and events that are held during the Olympic Games. In the Olympic context, skiing is a sport, ski jumping is a discipline, and women’s 90-metre ski jumping is the event the appellants want added to the Programme.
[17] Rule 47 of the 2004 Olympic Charter provides that the IOC determines which sports, disciplines, and events are included in the Games. It does so seven years before the Games in respect of sports, and three years before the Games in respect of disciplines and events. The IOC’s Executive Board makes the decisions as to disciplines and events and does so on the advice of an expert Olympic Programme Commission.
[18] Rule 47 of the 2004 Olympic Charter, which was in force in November of 2006 when the IOC decided not to include women’s ski jumping in the Programme, sets out a number of criteria for the admission of sports, disciplines and events, including “universality”, which is the number of countries and continents in which they are practised. As the judge observed at paragraph 99 of her reasons, “Rule 47(3.3) recognizes the historical disadvantage of women in sports and provides a lower ‘universality’ standard for the inclusion of new women’s events than it does for new men’s events.” The IOC lowered the universality requirement for women because it generally aims “to encourage and support the promotion of women in sport at all levels and in all structures with a view to implementing the principle of equality of men and women”. The IOC has also implemented a number of other initiatives aimed at increasing women’s participation in sports in general and the Olympics in particular, and these have had positive results: as the judge found at paragraph 102, “women now compete in approximately 48% of the events at the Winter Olympics and the percentage of female athletes has steadily increased to just over 40%.”
[19] For the 2010 Games, the Olympic Programme Commission considered applications to add seven new events, including women’s ski jumping. A member of the Commission deposed that the Commission considered the gender equity aspect of the women’s ski jumping application, which the members of the Commission considered to be “a strong factor in favour of adding the event”. However, the Commission recommended adding only the event of ski cross. The Commission stated the following in respect of women’s ski jumping in its report to the Executive Board:
The Commission also recommended that, at this point, the events of Curling Mixed Doubles and Women’s Ski Jumping should not be included in the Programme as their development is still in an early stage thus lacking the international spread of participation and technical standard required for an event to be included in the programme.
[20] The IOC Executive Board accepted the Commission’s recommendations, including the recommendation not to include women’s ski jumping for 2010. The Board expressly noted in its press release, however, that “it would be closely following the development of Women Ski Jumping with a view of its inclusion in future Olympic Games.”
[21] There is no dispute that the IOC determines the Olympic Programme in respect of each Olympic Games. The OCOG for each of the Olympic Games, such as VANOC in respect of the 2010 Games, has no authority whatsoever to determine or alter the Programme. The Host City Contract stipulates that it is the IOC that sets the Programme. As the judge found, OCOGs, such as VANOC, are “charged with staging the events included in the Programme by the IOC”. It is clear that an OCOG has no right to add or remove events from the Programme.
[22] Not only do OCOGs have no legal authority to alter the Programme, they also have no practical power to do so either. While at one time OCOGs had some informal influence over the Programme, the creation of the expert Olympic Programme Commission has entirely removed it. Furthermore, as the trial judge observed, OCOGs have no power to unilaterally stage Olympic events that are not on the Olympic Programme for at least two reasons. First, an event not on the Olympic Programme would not be considered by spectators and the sporting community to be “Olympic” and nor would it be in fact. Second, the staging of Olympic events requires the efforts not only of the OCOG, but also of the relevant IFs, which actually run the competitions, and the NOCs, which select and send the national teams for the Games. The IFs and NOCs take direction only from the IOC.
[23] The trial judge’s finding that VANOC did not make the decision to exclude women’s ski jumping from the Games and that VANOC does not have the power to remedy it entirely accords with the evidence. Her finding (at paragraph 127) that “VANOC has no power either to order the inclusion of women’s ski jumping in the Olympic Programme or to order the removal of men’s ski jumping from the 2010 Games” also accords with the evidence.
III. Section 32 of the Charter
[24] Section 32(1) reads:
This Charter applies
(a) 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; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
[25] Section 32 has the effect of limiting the scope of the applicability of the Charter: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 598; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 44.
[26] In Dolphin Delivery, the Supreme Court of Canada was called upon to consider whether the Charter applies in litigation as between private parties. Mr. Justice McIntyre, giving the majority judgment, considered the question under the heading “Does the Charter apply to private litigation?” commencing at 593:
... One view of the matter rests on the proposition that the Charter, like most written constitutions, was set up to regulate the relationship between the individual and the Government. It was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation.
Support for this view is found in Peter W. Hogg, [Constitutional Law of Canada, 2d ed. (Toronto: Carswell, 1985)] at pp. 670-78, and in an article by Katherine Swinton, “Application of the Canadian Charter of Rights and Freedoms”, in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms – Commentary.
At pages 674-75 in his text, Professor Hogg says:
The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter. Such actions as an employer restricting an employee’s freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter, because in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law, or under some other branch of the law governing relations between private persons; but there will be no breach of the Charter.
[27] Mr. Justice McIntyre referred, at 594, to the article by Professor Katherine Swinton in which she elaborates on the reasons for excluding the Charter from private litigation:
... Professor Swinton ... has pointed out that the Charter is not designed to be employed in private litigation and by its very nature it is not suited for that purpose. At pages 47-48, she says:
Moreover, in considering whether the Charter should be directly applicable, the courts should bear in mind its drawbacks as a method of dealing with private action and the advantages of leaving the regulation of such conduct to human rights legislation or other legal controls. Legislation can be tailored to deal with the tension between privacy rights and equality or that between freedom of expression and prohibition of hate literature. It can expressly limit the applicability of equality guarantees to services or to areas open to the public, or specify the right to set bona fide job qualifications. The Charter is not so refined, and provides no guidelines for its application. These would have to be judicially determined.
As well, statutes such as particular human rights and equal pay laws contain an administrative structure designed to promote mediated settlements of disputes, rather than resort to litigation. There is an elaborate structure of conciliation preceding adjudications by an administrative tribunal, which can have an educative effect between the parties. The Charter will be interpreted for the most part in the courts, where there is no built-in mechanism to encourage settlement.
and later, she said, at p. 48:
One should also keep in mind the concerns of the federal and provincial governments in drafting and agreeing to the Charter. Their focus was its effect on their own governmental operations. That is the reason for s. 1, requiring the courts to interpret the guarantees so as to allow reasonable limitations imposed by law. The override section (s. 33), allowing the legislatures to enact laws infringing the Charter, also indicates that governments were concerned about bounds on legislative action. The governments did not address the application of the Charter to private action, and indeed it would have been strange for them to do so, for their existing human rights codes address that matter.
[28] Mr. Justice McIntyre, after expressing agreement with the view of Professor Swinton that the Charter does not apply to private litigation, referred to the text of s. 32 and found, at 598-99, that s. 32 is conclusive in limiting the scope of the application of the Charter to government. In Dolphin Delivery, the Court did not have to decide on the extent to which the Charter applies to the actions of subordinate bodies that are created and supported by Parliament or the legislatures, but left open the possibility that such bodies could be governed by the Charter. Thus, McIntyre J. stated, at 602:
It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures. It is not suggested that this list is exhaustive.
[29] In four appeals heard at the same time, McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, and Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, the Supreme Court considered whether certain entities could be found to have infringed s. 15(1) of the Charter on the basis of age discrimination. McKinney contains the main judgment of the quartet, given by La Forest J. who wrote for the majority on all issues. In McKinney, the possible effect of the Charter on four universities’ mandatory retirement policies was at issue. In that case, La Forest J. elaborated on the rationalization for limiting the scope of the application of the Charter. Under the heading “The Application of the Charter”, La Forest J., after setting out s. 32(1), said at 261-62:
These words give a strong message that the Charter is confined to government action. This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, Dickson J. (as he then was) observed: “It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 490, Wilson J. noted that “the central concern of [s. 7 of the Charter] is direct impingement by government upon the life, liberty and personal security of individual citizens” (emphasis added). See also R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 347, per Dickson J.; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, especially at pp. 593-98; and Tremblay v. Daigle, [1989] 2 S.C.R. 530.
The exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice which must be respected. We do not really know why this approach was taken, but several reasons suggest themselves. Historically, bills of rights, of which that of the United States is the great constitutional exemplar, have been directed at government. Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom. Only government requires to be constitutionally shackled to preserve the rights of the individual. Others, it is true, may offend against the rights of individuals. This is especially true in a world in which economic life is largely left to the private sector where powerful private institutions are not directly affected by democratic forces. But government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity.
[Emphasis in original.]
[30] If a Charter breach is alleged against an entity specifically referred to in s. 32, that is, Parliament, the legislatures and government, then it is clear that the Charter applies with respect to that entity: Dolphin Delivery at 598-599; Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, 309 D.L.R. (4th) 277 at para. 14.
[31] Section 32 also refers to “all matters within the authority of” Parliament, the legislatures and government, thus extending the reach of the Charter to other entities. The reasons of La Forest J. in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, explain the rationale for the additional reach of the Charter under s. 32:
[48] ... Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are – as a simple matter of fact – governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies. In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter. Clearly, this course of action would indirectly narrow the ambit of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charter rights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender.
[32] In Eldridge at paras. 37-42, La Forest J. reviewed the position the Supreme Court had taken in relation to s. 32 in McKinney, Harrison, Stoffman, Douglas/Kwantlen Faculty Assn., and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211. He then provided the following summary of when the Charter may be found to apply:
[44] ... the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature – for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
[Emphasis added.]
[33] In Greater Vancouver Transportation Authority, Deschamps J., giving judgment for the Court, referred to what La Forest J. had said in Godbout and Eldridge, set out above, and then suggested two ways for determining whether the Charter applies to an entity’s activities:
[16] Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.
[34] In the case before us, no one suggests that VANOC is, by its very nature, a government entity. The judge concluded that government does not exercise substantial control over VANOC and the appellants do not take issue with that finding.
(a) The trial judge’s reasons on the s. 32 issue
[35] The question the judge posed in relation to s. 32 was whether staging the Games was a truly governmental activity. In that regard, she said, in part:
[53] I agree with VANOC that the celebration of any Olympic Games, including the 2010 Games, is a key component of the Olympic movement. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.
[54] In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature. In Stoffman, a hospital was found to be providing the public service of health care, but that did not qualify as a government function under s. 32. In [McKinney], La Forest J. described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.
...
[56] I am not aware of any case that has moved beyond the threshold of the two examples given by La Forest J. in Eldridge, but that does not mean that other truly governmental actions do not exist. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”....
[57] In my view, the governmental nature of staging the 2010 Games is evident from a review of the bid process ... and the contracts under which the 2010 Games are being staged.
...
[59] Vancouver, in conjunction with Canada, British Columbia, and the COC, made the decision to bid for and host the 2010 Games. That decision required financial commitments and commitments of effort and collective will. In British Columbia’s and Vancouver’s case, it also included a guarantee and indemnification with respect to any shortfall from the 2010 Games. The real cost to the provincial government of staging the 2010 Games has been estimated by the British Columbia Auditor General at $2.5 billion.
[60] The Host City Contract (Clause 1) says clearly that the 2010 Games were awarded to Vancouver. It states:
1. Entrustment of Organization of the Games
The IOC hereby entrusts the organization of the Games to the City and the NOC which undertake to fulfil their obligation in full compliance with the provisions of the Olympic Charter and of this Contract, including, without limitation, all matters referred to in the Appendices to this Contract, which, for greater certainty, are deemed to form part of this Contract.
[61] Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.
[62] In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.
[63] The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act, R S.C. 1985, c. 31 (4th Supp.), which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.
...
[65] In summary on this issue, VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing, and staging the 2010 Games.
[Emphasis added.]
(b) The parties’ submissions on the ascribed activity test
[36] In argument before us, the legal question of whether “VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing, and staging the 2010 Games” was highly contentious.
[37] The appellants recognize that VANOC is a private entity and that in hosting and staging the Games, VANOC is not engaged in the implementation of a statutory scheme on behalf of government. Instead, the appellants rely on the Multiparty Agreement in asserting that various commitments made by the three levels of government at the time the bid to host the Games was made demonstrate, as the judge found, that hosting and staging the Games is a governmental activity.
[38] There is a serious question, however, as to whether a contract entered into by government to provide infrastructure and to make up any shortfall in paying for liabilities of the Games falls within the “ascribed activity” test posited by La Forest J. in Eldridge. As noted earlier, the wording of s. 32 limits the application of the Charter. In this case, the relevant phrase to consider is “in respect of all matters within the authority of Parliament”.
[39] VANOC’s submissions on whether the particular activity in issue is an activity that can be ascribed to government focus directly on what drives the appellants’ complaint, that is, the selection of events to be staged at the Games.
[40] VANOC’s primary submission in the court below was that the activity relevant to the s. 32 determination is the selection of the events to be staged at the Games. While the judge acknowledged that VANOC’s argument is “an important issue”, she found that it “is better addressed as part of the s. 15 analysis in considering whether, within its delivery of the 2010 Games, VANOC has exercised its decision-making power so as to breach s. 15” (at paras. 49-51).
[41] As noted above, the trial judge held that VANOC’s hosting and staging of the Games is a governmental activity and, on that footing, held that VANOC is subject to the Charter. The judge went on to hold that the IOC decision to include only men’s ski jumping events is discriminatory but nevertheless concluded that “VANOC is not in breach of s. 15 of the Charter by staging the Programme of Olympic events determined by the IOC.” The judge dismissed the appellants’ application for the reasons she expressed in paragraphs 121 and 123 of her judgment:
[121] VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women’s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.
...
[123] In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.
[42] Before us, VANOC argues that the trial judge correctly identified why the appellants’ case must be dismissed; that is, VANOC does not determine which events are to be part of the 2010 Games. However, it is VANOC’s submission that the point can best be expressed legally in either of two ways:
(1) The Charter does not apply to the discrimination alleged in this case because the determination of the Olympic Programme is not an activity that can be ascribed to government. To the contrary, the Olympic Programme is wholly the IOC’s domain. Even if VANOC’s staging of events is properly held to be a governmental activity, which VANOC disputes, the decision whether or not certain events will be staged during the Games is not a governmental activity; it is simply not a decision any government or any OCOG (such as VANOC) may make. The decision not to include women’s ski jumping, therefore, is not a decision to which the Charter applies.
(2) The benefit of having an event included in the Olympic Programme is not a “benefit of the law” for the purposes of section 15. That benefit is bestowed by the IOC, not by or pursuant to any Canadian law. While the appellants have been denied a benefit, it is not a benefit that the law provides such that section 15 applies.
[43] As may be seen from the foregoing, VANOC’s submissions support the result reached by the trial judge but depart from her legal analysis.
(c) The application of s. 32 of the Charter
[44] Three levels of government entered into the Multiparty Agreement for the purpose of securing the 2010 Games with Vancouver as the Host City and did so in the absence of any statutory authority to support that purpose. In the circumstances, it is a nice question as to whether obligations in the Host City contract, which came into being after the IOC chose Vancouver as the host city and to which VANOC, but not government, is a party, can correctly be viewed as being a matter within the authority of government under s. 32 of the Charter.
[45] There is no dispute that both the IOC and VANOC are private entities as that term is understood in the jurisprudence. Nor can there be any dispute that under the terms of the Host City Contract (a standard contract required to be signed by an OCOG, here VANOC, if the bid were successful) VANOC is obliged to host and stage the Games under the direction and control of the IOC, the governing body of the Olympic Movement. Under the contract, no government has legal power to control VANOC even if government wished to do so. Like other private organizations, VANOC is subject to government regulation and it may depend in large measure on government funds to provide services and infrastructure, but VANOC must manage its affairs under the direction and control of the IOC. That the IOC controls VANOC is undisputed.
[46] Assuming, without deciding, that the trial judge was correct in concluding that the obligations contained in the Multiparty Agreement, aimed at securing the 2010 Games, and to which governments were parties, can be construed as a matter coming within the authority of government under s. 32 of the Charter, we are still left with the question of whether the selection of the events to be staged at those Games, which is the nub of the appellants’ complaint, could come under that umbrella.
[47] Nothing in the Multiparty Agreement suggests that it was a governmental obligation or function to determine, or to participate in determining, what events were to be selected for the Games. Nothing in the terms of the contract suggests that such a decision rests with a body other than the IOC, which must make the decision pursuant to the terms of the Olympic Charter.
[48] Under the Host City Contract, the IOC is recognized as having the exclusive authority to determine what events will be staged at an Olympic Games. Further, when the bid to host the Games was put forward though the Multiparty Agreement in 2003, the IOC had not yet selected the events for the 2010 Games. Given that all levels of government agreed to put forward a bid to host the Games in Vancouver before the slate of events was set, it is clear that the specific events to be staged were not important to the goals of government.
[49] The case authorities support the view that, in determining the scope of the application of the Charter to an entity such as VANOC, it is necessary to look not only to the activities or function of the entity itself but also to the nature or function of the specific act or decision of the entity that is said to infringe a Charter right. Regardless of whether VANOC’s hosting of the Games can properly be considered to be a governmental activity because of the substantial commitments made by the several levels of government to secure and hold the Games in Vancouver, it is clear on the facts that neither government nor VANOC had any authority either to make or to alter the decision of the IOC not to include a women’s ski jumping event in the 2010 Games. The decision of the IOC not to add women’s ski jumping as an event in the 2010 Games is not a “policy” choice that could be or was made by any Canadian government and the staging by VANOC of only those events authorized by the IOC cannot reasonably be viewed as furthering any Canadian government policy or program.
[50] As deciding which events to include in the 2010 Games is not an activity to which the Charter applies, the appellants’ claim of discrimination based on s. 15(1) of the Charter fails. However, as the matter was fully argued, we will address the appellants’ contention that denying them but not men the opportunity to compete in ski jumping denies them a “benefit of the law” guaranteed by s. 15(1).
IV. Section 15(1) of the Charter
[51] Section 15(1) reads:
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.
[52] The Supreme Court of Canada has described the analysis that is required to determine whether a s. 15(1) violation is made out in various ways. In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88, the Court described a three-part analysis:
[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?
[53] More recently, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, the Court suggested a two-stage approach:
[17] The template in Andrews [Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143], as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same.
[54] Significantly, both of these analyses require, as a first step, the identification of a law that creates a distinction on an enumerated or analogous ground. The necessity of identifying such a law stems from the language of s. 15(1). Section 15(1) sets out constitutional guarantees of equality that are broad in scope, but it does not constitute a general guarantee of equality. Rather, the section guarantees equality only in the way that the law affects individuals. Where the law is not implicated in discrimination or inequality, s. 15(1) is not engaged. This point was emphasized by McLachlin C.J., speaking for a unanimous court in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657:
[27] … The primary and oft-stated goal of s. 15(1) is to combat discrimination and ameliorate the position of disadvantaged groups within society. Its specific promise, however, is confined to benefits and burdens “of the law”. Combatting discrimination and ameliorating the position of members of disadvantaged groups is a formidable task and demands a multi-pronged response. Section 15(1) is part of that response. Section 15(2)’s exemption for affirmative action programs is another prong of the response. Beyond these lie a host of initiatives that governments, organizations and individuals can undertake to ameliorate the position of members of disadvantaged groups.
[28] The specific role of s. 15(1) in achieving this objective is to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis. This confines s. 15(1) claims to benefits and burdens imposed by law. As stated in R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1329:
The guarantee of equality before the law is designed to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others.
[29] Most s. 15(1) claims relate to a clear statutory benefit or burden. Consequently, the need for the benefit claimed or burden imposed to emanate from law has not been much discussed. Nevertheless, the language of s. 15(1) as well as the jurisprudence demand that it be met before a s. 15(1) claim can succeed.
[Emphasis by McLachlin C.J.]
[55] In Auton itself, while the impugned programs were operated by government, they did not provide the sorts of benefits that the plaintiffs in that case were seeking. There was, therefore, no inequality with respect to any “benefit of the law”. In short, there was nothing to which a claim under s. 15(1) could attach.
[56] In the case before us, the appellants’ greatest challenge is to demonstrate that the unequal benefit (the availability of men’s, but not women’s, ski jumping events) is in some way a product of “law”. On the face of it, the right to compete in a ski jumping event at the Olympics Games does not appear to be a “benefit of the law”. It is not a right deriving from legislation, nor is it conferred by a governmental entity. Instead, it derives from a decision by the IOC to hold an event. It is not suggested that the IOC is a law-making body. Further, the IOC’s decision not to hold a women’s ski jumping event at the 2010 Games is a decision that has not been endorsed by VANOC, or by any Canadian government body.
[57] The trial judge found that the contractual arrangements set out in the Multiparty Agreement and the Host City Contract were “law” for the purposes of s. 15(1). That was sufficient, in her view, to make the provision of ski jumping events at the 2010 Games a benefit of the law. She then analysed the case using the two-stage test set out in Kapp, and found both parts of the test to be satisfied in respect of the IOC’s decision to exclude women’s ski-jumping from the Games. She nonetheless found that there was no violation of s. 15(1), on the basis that VANOC did not have control over the decision.
[58] We agree with the trial judge’s conclusion that there is no violation of s. 15(1) of the Charter in this case. We also agree with her conclusion that VANOC’s lack of discretion over what events are included in the Games is a critical factor in the analysis. In our view, however, the nature of VANOC’s powers and the limits of its authority are best considered as components of the threshold analysis of whether the impugned distinctions can properly be categorized as failures to provide equal benefit of the law.
[59] In considering whether the contracts under which VANOC is staging the 2010 Games furnish the required nexus between the alleged discrimination and the law of Canada, the trial judge said this:
[69] ... I will address the threshold question of whether a contract entered into by a private entity that is not controlled by government can be the source of a “benefit of the law” within the meaning of s. 15.
[70] The benefit the plaintiffs say they are being denied is being delivered by VANOC under the Multiparty Agreement and the Host City Contract. It is clear that benefits delivered under a contract entered into by a government-controlled entity must be delivered in a manner consistent with s. 15 of the Charter: In Douglas College [Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570] at 585-86, La Forest J. said the following regarding the issue of whether the collective agreement was “law within the meaning of s. 15(1) of the Charter”:
For reasons discussed in McKinney v. University of Guelph [[1990] 3 S.C.R. 229], I am of the view that the collective agreement is law. It was entered into by a government agency pursuant to powers granted to that agency by statute in furtherance of government policy. The fact that the collective agreement was agreed to by the appellant association does not alter the fact that the agreement was entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating Charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated. The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age. It may be that age can constitute a rational basis for a party to agree to contract out of certain rights and thus be open to the defences of waiver or estoppel or again that it may in certain circumstances constitute a reasonable limitation under s. 1. These are issues, however, which were not before the Board or the courts below and I refrain from commenting upon them further.
[71] In McKinney at 276, La Forest J. said:
For section 15 of the Charter to come into operation, the alleged inequality must be one made by “law”. The most obvious form of law for this purpose is, of course, a statute or regulation. It is clear, however, that it would be easy for government to circumvent the Charter if the term law were to be restricted to these formal types of law-making. It seems obvious from what McIntyre J. had to say in the Dolphin Delivery case that he intended that exercise by government of a statutory power or discretion would, if exercised in a discriminatory manner prohibited by s. 15, constitute an infringement of that provision. At all events, this Court has now acted on this basis in Slaight Communications Inc. v. Davidson, [[1989] 1 S.C.R. 1038]; see also the remarks of Linden J. in Re McCutcheon and City of Toronto, [(1983), 147 D.L.R. (3d) 193], at p. 202. On the assumption that the universities form part of the fabric of government, I would have thought their policies on mandatory retirement would amount to a law for the purposes of s. 15 of the Charter. Indeed, in most of the universities, these policies were adopted by the universities in a formal manner. That being so, the fact that they were accepted by the employees should not alter their characterization as law, although this would be a factor to be considered in deciding whether under the circumstances the infringement constituted a reasonable limit under s. 1 of the Charter.
[72] The plaintiffs argue that s. 15 of the Charter should also apply to an entity that is not subject to government control but is delivering services that are truly governmental in nature under a contract. In my view, this is an incremental and principled extension of the Supreme Court of Canada’s purposive interpretation of the Charter. A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.
[Emphasis by trial judge.]
[60] In our view, the trial judge fell into error in treating the issue as one involving an “incremental and principled extension” to existing Charter jurisprudence. Neither Douglas/Kwantlen Faculty Assn. nor McKinney stands for the proposition that all obligations and entitlements under government contracts constitute “law” for the purposes of s. 15(1) of the Charter. Rather, they stand for the proposition that deliberately and formally adopted policies of government may constitute “law” notwithstanding that they are embodied in contractual documents rather than in legislative acts or statutory instruments.
[61] The rationale for extending the meaning of “law” in s. 15(1) to particular governmental actions taken by the executive was discussed in Eldridge:
21 The s. 32 jurisprudence of this Court has for the most part focused on the [legislation found to be unconstitutional on its face]. There is no doubt, however, that the Charter also applies to action taken under statutory authority. The rationale for this rule flows inexorably from the logical structure of s. 32. As Professor Hogg explains in his Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at pp. 34-8.3 and 34-9:
Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.
The sentiment of Lord Atkin in speaking of a constitutional prohibition addressed solely at the legislative branch is also apposite: “The Constitution”, he wrote, “is not to be mocked by substituting executive for legislative interference with freedom”; see James v. Cowan, [1932] A.C. 542 (P.C. Australia), at p. 558.
22 The question in the present case, then, is whether the alleged breach of s. 15(1) arises from the impugned legislation itself or from the actions of entities exercising decision-making authority pursuant to that legislation.
[62] For the purposes of s. 15(1) of the Charter, an action or provision will typically be considered “law” only if its validity derives from statutory authority. We say “typically” to leave open the possibility that actions or provisions that derive their authority from the royal prerogative or from the “ordinary” powers of the Crown might, in some circumstances, be considered “law”; that issue does not arise in this case. The case we are dealing with does not involve the exercise of any power flowing from the Crown.
[63] This case is, in our view, unlike the situations discussed in Douglas/Kwantlen Faculty Assn. and McKinney. In those cases, the Supreme Court was considering acts of agents of the Crown whose powers were wholly derived from statute. The defendant in this case, in contrast, is a private corporation with the powers of an ordinary person. It is not an agent of the Crown. It has authority to undertake its duties under the Host City Contract without the need for additional powers delegated by the Crown.
[64] There are other difficulties with the appellants’ argument that the decision to hold men’s, but not women’s, ski jumping events constitutes “law” for the purposes of s. 15(1) of the Charter. Even if the Multiparty Agreement or the Host City Contract qualified as “law” for the purposes of s. 15(1), the appellants would have to demonstrate that the policy that is the root of their complaint is embodied in those contracts. They are unable to do so. Indeed, as the appellants concede, the decision at issue in this case is within the exclusive authority of the IOC; VANOC has attempted to convince the IOC to include a women’s event in the 2010 Games, but has been unsuccessful.
[65] This is not a case, then, of a governmental body attempting to circumvent the Charter by exercising power through contract instead of through legislation. Rather, it is a case in which a non-governmental body is brought before the court as a result of policies which neither it nor any Canadian authority has the power to change.
[66] The appellants contend that the fact the discrimination they face is not VANOC’s fault is irrelevant. They argue that a party may be guilty of discrimination even where it has no intent to discriminate. We agree that the appellants need not show that discrimination against them is motivated by malice, or is otherwise deliberate. The issue in this case, however, is not intention, but rather control. VANOC simply does not have the power to determine what events are included in the 2010 Olympic programme. The word “law” in s. 15(1) of the Charter cannot be so broadly construed as to include policies or practices that no Canadian government has jurisdiction to enact or change.
[67] Accordingly, even if the Charter applied to VANOC in respect of the impugned conduct in this case, the appellants’ claims under s. 15(1) could not succeed. The availability of ski jumping events at the 2010 Games is simply not a “benefit of the law” for the purposes of s. 15(1).
V. Conclusion
[68] The appeal is dismissed. VANOC is entitled to costs, if costs are sought.
“The Honourable Madam Justice Rowles”
“The Honourable Mr. Justice Frankel”
“The Honourable Mr. Justice Groberman”
Citation:
Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games,
2009 BCCA 522
Date: 20091120
Docket: CA037306
Between:
Anette Sagen, Jenna Mohr, Lindsey Van, Jessica Jerome,
Ulrike Grassler, Monika Planinc, Marie-Pierre Morin, Karla Keck,
Nathalie De Leeuw, Katherine Willis by her Litigation Guardian Jan Willis,
Jade Edwards, Zoya Lynch by her Litigation Guardian Sarah Lynch,
Charlotte Mitchell by her Litigation Guardian Miriam Mitchell
and Meaghan Reid by her Litigation Guardian Nina Hooper-Reid
Appellants
(Plaintiffs)
And
Vancouver Organizing Committee for the 2010Olympic and Paralympic Winter Games
Respondent
(Defendant)
Before:
The Honourable Madam Justice Rowles
The Honourable Mr. Justice Frankel
The Honourable Mr. Justice Groberman
On appeal from the Supreme Court of British Columbia, July 10, 2009,
(Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCSC 942, S083619)
Counsel for the Appellants:
D.R. Clark, Q.C.
J. D. Horswill
M. B. Gehlen
Counsel for the Respondent:
G. K. Macintosh, Q.C.
T. A. Dickson
Place and Date of Hearing:
Vancouver, British Columbia
November 12 &13, 2009
Place and Date of Judgment:
Vancouver, British Columbia
November 13, 2009
Date of Reasons:
November 20, 2009
Written Reasons of the Court
Reasons for Judgment of the Court:
I. Introduction
[1] The appellants, all highly-ranked women ski jumpers, brought an application against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“VANOC”) seeking the following declaratory order:
If VANOC plans, organizes, finances and stages ski jumping events for men in the 2010 Winter Olympic Games, then a failure to plan, organize, finance and stage a ski jumping event for women violates their equality rights, as guaranteed in section 15(1) of the Canadian Charter of Rights and Freedoms, and is not saved under s. 1.
[2] There were two central issues in the court below: (1) under s. 32 of 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, does the Charter apply to the claim of gender discrimination advanced by the appellants against VANOC? (2) if so, then is VANOC breaching section 15(1) of the Charter by staging men’s, but not women’s, ski jumping events at the 2010 Olympic Games?
[3] The trial judge found that hosting and staging the 2010 Olympic and Paralympic Winter Games was a governmental activity being performed by VANOC and that VANOC was, therefore, subject to the Charter. Nevertheless, the judge dismissed the appellants’ application on the ground that “only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter” (at para. 123). The judge’s reasons are indexed at 2009 BCSC 942.
[4] The error in judgment put forward by the appellants takes as its starting point two of the trial judge’s conclusions: (1) that VANOC is carrying out a governmental activity in hosting and staging the 2010 Games, and (2) that the staging of ski jumping events for the 2010 Games is a benefit of the law. The appellants submit that these conclusions are grounded in findings of fact entitled to deference. The error in judgment, as stated in the appellants’ factum, is as follows:
Having found that:
(a) VANOC is carrying out a government activity in hosting the Games,
(b) the hosting of ski jumping events for the Games is a benefit of the law,
(c) VANOC is hosting ski jumping events for men but not for women, and
(d) this differential treatment of the Appellants discriminates against them in a substantive sense,
the Trial Judge erred in law when she further concluded that the Appellants’ rights under s. 15(1) of the Charter are not violated by VANOC’s hosting of only men’s ski jumping events, and that they are not entitled to a declaration to that effect.
[5] While VANOC supports the trial judge’s order dismissing the appellants’ application, it departs from the judge’s legal analysis to arrive at the same result.
[6] After hearing oral argument, we dismissed the appeal with reasons to follow. We have concluded that the Charter does not apply to the selection of events for the 2010 Olympic Games and that, even if the Charter did apply, the failure to include the women’s ski jumping event would not constitute a breach of s. 15(1). Our reasons for so concluding follow.
II. Background
[7] The Olympic Movement, which was founded in 1894, is the descriptor used to denote the organizations and individuals involved in the Olympic Games. The ultimate governing authority of the Olympic Movement is the International Olympic Committee (“IOC”), a non-governmental, not-for-profit organization with headquarters in Switzerland.
[8] The Olympic Charter, which codifies the Movement’s fundamental principles and rules, states:
The Olympic Movement is the concerted, organised, universal and permanent action, carried out under the supreme authority of the IOC, of all individuals and entities who are inspired by the values of Olympism. It covers the five continents. It reaches its peak with the bringing together of the world’s athletes at the great sports festival, the Olympic Games. Its symbol is five interlaced rings.
[Emphasis added.]
[9] The Olympic Movement includes International Federations (“IFs”), which administer sports at the world level and which actually run the events at the Olympic Games; National Olympic Committees (“NOCs”), which are non-governmental ambassadors of the Olympic Movement in each country and which select and manage each national team at the Olympic Games; and Organizing Committees (“OCOGs”), such as VANOC, which plan, organize, finance and stage their respective editions of the Games. All of these organizations are under the supreme authority of the IOC and must abide by the Olympic Charter. As one of the “Fundamental Principles of Olympism” in the Olympic Charter states: “Belonging to the Olympic Movement requires compliance with the Olympic Charter and recognition by the IOC.”
[10] Rule 6(3) of the Olympic Charter states that “[t]he authority of last resort on any question concerning the Olympic Games rests with the IOC.” Rule 7(1) of the Olympic Charter makes clear that ownership of the Olympics lies exclusively and firmly with the IOC. Not only does the IOC govern the Olympic Games, it also owns all of the intellectual property associated with them. The marketing of that brand through exclusive sponsorships, ticketing and broadcast revenues funds the Games.
[11] While it owns and controls the Olympic Games, the IOC does not itself organize them. Instead, the IOC chooses a Host City, and that City, along with the relevant NOC, is required to incorporate an OCOG, which in turn organizes the Olympic Games under the IOC’s direction. The IOC permits the OCOG to use the Olympic brand for this purpose, pursuant to a standard agreement known as a Host City Contract, which it requires each OCOG to sign.
[12] On 14 November 2002, the federal, provincial and two local governments (Vancouver and Whistler), the Canadian Olympic Committee, the Canadian Paralympic Committee and the Vancouver 2010 Bid Corporation entered into an agreement, the goal of which was to have Vancouver chosen as the Host City for the 2010 Games. That agreement, styled the Multiparty Agreement for the 2010 Winter Olympic and Paralympic Games (“Multiparty Agreement”), reflects various requirements of the IOC, and recognizes the supreme authority of the IOC in relation to the Games. The Multiparty Agreement requires incorporation of an OCOG to host and stage the Games should the bid be successful.
[13] On 2 July 2003, the IOC selected Vancouver as the Host City for the 2010 Games. After the bid was accepted by the IOC, VANOC was incorporated federally as a non-profit corporation responsible for staging those Games. On 20 October 2003, the City of Vancouver, the Canadian Olympic Committee and VANOC entered into the Host City Contract for the XXI Olympic Winter Games in the Year 2010 (“Host City Contract”).
[14] It is the marketing of the IOC’s intellectual property rights that pays for VANOC’s $1.75 billion operating budget. Through the licence granted to it by the IOC, VANOC is able to earn substantial sums in corporate domestic sponsorships and in ticketing. The IOC directly contributes approximately $450 million to VANOC in broadcast revenues and about $200 million from its international sponsorship program.
[15] The IOC closely controls OCOGs, including VANOC. Given that the IOC is licensing its intellectual property to OCOGs, such extensive control is not surprising. In paragraphs 35 to 40 of her reasons, the judge detailed some of that control. She found that the IOC exercises “day-to-day control” over VANOC and has “control over the minute details of VANOC’s operations in planning and staging the 2010 Games”.
[16] The “Olympic Programme” refers to the slate of sports, disciplines and events that are held during the Olympic Games. In the Olympic context, skiing is a sport, ski jumping is a discipline, and women’s 90-metre ski jumping is the event the appellants want added to the Programme.
[17] Rule 47 of the 2004 Olympic Charter provides that the IOC determines which sports, disciplines, and events are included in the Games. It does so seven years before the Games in respect of sports, and three years before the Games in respect of disciplines and events. The IOC’s Executive Board makes the decisions as to disciplines and events and does so on the advice of an expert Olympic Programme Commission.
[18] Rule 47 of the 2004 Olympic Charter, which was in force in November of 2006 when the IOC decided not to include women’s ski jumping in the Programme, sets out a number of criteria for the admission of sports, disciplines and events, including “universality”, which is the number of countries and continents in which they are practised. As the judge observed at paragraph 99 of her reasons, “Rule 47(3.3) recognizes the historical disadvantage of women in sports and provides a lower ‘universality’ standard for the inclusion of new women’s events than it does for new men’s events.” The IOC lowered the universality requirement for women because it generally aims “to encourage and support the promotion of women in sport at all levels and in all structures with a view to implementing the principle of equality of men and women”. The IOC has also implemented a number of other initiatives aimed at increasing women’s participation in sports in general and the Olympics in particular, and these have had positive results: as the judge found at paragraph 102, “women now compete in approximately 48% of the events at the Winter Olympics and the percentage of female athletes has steadily increased to just over 40%.”
[19] For the 2010 Games, the Olympic Programme Commission considered applications to add seven new events, including women’s ski jumping. A member of the Commission deposed that the Commission considered the gender equity aspect of the women’s ski jumping application, which the members of the Commission considered to be “a strong factor in favour of adding the event”. However, the Commission recommended adding only the event of ski cross. The Commission stated the following in respect of women’s ski jumping in its report to the Executive Board:
The Commission also recommended that, at this point, the events of Curling Mixed Doubles and Women’s Ski Jumping should not be included in the Programme as their development is still in an early stage thus lacking the international spread of participation and technical standard required for an event to be included in the programme.
[20] The IOC Executive Board accepted the Commission’s recommendations, including the recommendation not to include women’s ski jumping for 2010. The Board expressly noted in its press release, however, that “it would be closely following the development of Women Ski Jumping with a view of its inclusion in future Olympic Games.”
[21] There is no dispute that the IOC determines the Olympic Programme in respect of each Olympic Games. The OCOG for each of the Olympic Games, such as VANOC in respect of the 2010 Games, has no authority whatsoever to determine or alter the Programme. The Host City Contract stipulates that it is the IOC that sets the Programme. As the judge found, OCOGs, such as VANOC, are “charged with staging the events included in the Programme by the IOC”. It is clear that an OCOG has no right to add or remove events from the Programme.
[22] Not only do OCOGs have no legal authority to alter the Programme, they also have no practical power to do so either. While at one time OCOGs had some informal influence over the Programme, the creation of the expert Olympic Programme Commission has entirely removed it. Furthermore, as the trial judge observed, OCOGs have no power to unilaterally stage Olympic events that are not on the Olympic Programme for at least two reasons. First, an event not on the Olympic Programme would not be considered by spectators and the sporting community to be “Olympic” and nor would it be in fact. Second, the staging of Olympic events requires the efforts not only of the OCOG, but also of the relevant IFs, which actually run the competitions, and the NOCs, which select and send the national teams for the Games. The IFs and NOCs take direction only from the IOC.
[23] The trial judge’s finding that VANOC did not make the decision to exclude women’s ski jumping from the Games and that VANOC does not have the power to remedy it entirely accords with the evidence. Her finding (at paragraph 127) that “VANOC has no power either to order the inclusion of women’s ski jumping in the Olympic Programme or to order the removal of men’s ski jumping from the 2010 Games” also accords with the evidence.
III. Section 32 of the Charter
[24] Section 32(1) reads:
This Charter applies
(a) 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; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
[25] Section 32 has the effect of limiting the scope of the applicability of the Charter: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 598; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 44.
[26] In Dolphin Delivery, the Supreme Court of Canada was called upon to consider whether the Charter applies in litigation as between private parties. Mr. Justice McIntyre, giving the majority judgment, considered the question under the heading “Does the Charter apply to private litigation?” commencing at 593:
... One view of the matter rests on the proposition that the Charter, like most written constitutions, was set up to regulate the relationship between the individual and the Government. It was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation.
Support for this view is found in Peter W. Hogg, [Constitutional Law of Canada, 2d ed. (Toronto: Carswell, 1985)] at pp. 670-78, and in an article by Katherine Swinton, “Application of the Canadian Charter of Rights and Freedoms”, in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms – Commentary.
At pages 674-75 in his text, Professor Hogg says:
The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter. Such actions as an employer restricting an employee’s freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter, because in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law, or under some other branch of the law governing relations between private persons; but there will be no breach of the Charter.
[27] Mr. Justice McIntyre referred, at 594, to the article by Professor Katherine Swinton in which she elaborates on the reasons for excluding the Charter from private litigation:
... Professor Swinton ... has pointed out that the Charter is not designed to be employed in private litigation and by its very nature it is not suited for that purpose. At pages 47-48, she says:
Moreover, in considering whether the Charter should be directly applicable, the courts should bear in mind its drawbacks as a method of dealing with private action and the advantages of leaving the regulation of such conduct to human rights legislation or other legal controls. Legislation can be tailored to deal with the tension between privacy rights and equality or that between freedom of expression and prohibition of hate literature. It can expressly limit the applicability of equality guarantees to services or to areas open to the public, or specify the right to set bona fide job qualifications. The Charter is not so refined, and provides no guidelines for its application. These would have to be judicially determined.
As well, statutes such as particular human rights and equal pay laws contain an administrative structure designed to promote mediated settlements of disputes, rather than resort to litigation. There is an elaborate structure of conciliation preceding adjudications by an administrative tribunal, which can have an educative effect between the parties. The Charter will be interpreted for the most part in the courts, where there is no built-in mechanism to encourage settlement.
and later, she said, at p. 48:
One should also keep in mind the concerns of the federal and provincial governments in drafting and agreeing to the Charter. Their focus was its effect on their own governmental operations. That is the reason for s. 1, requiring the courts to interpret the guarantees so as to allow reasonable limitations imposed by law. The override section (s. 33), allowing the legislatures to enact laws infringing the Charter, also indicates that governments were concerned about bounds on legislative action. The governments did not address the application of the Charter to private action, and indeed it would have been strange for them to do so, for their existing human rights codes address that matter.
[28] Mr. Justice McIntyre, after expressing agreement with the view of Professor Swinton that the Charter does not apply to private litigation, referred to the text of s. 32 and found, at 598-99, that s. 32 is conclusive in limiting the scope of the application of the Charter to government. In Dolphin Delivery, the Court did not have to decide on the extent to which the Charter applies to the actions of subordinate bodies that are created and supported by Parliament or the legislatures, but left open the possibility that such bodies could be governed by the Charter. Thus, McIntyre J. stated, at 602:
It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures. It is not suggested that this list is exhaustive.
[29] In four appeals heard at the same time, McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, and Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, the Supreme Court considered whether certain entities could be found to have infringed s. 15(1) of the Charter on the basis of age discrimination. McKinney contains the main judgment of the quartet, given by La Forest J. who wrote for the majority on all issues. In McKinney, the possible effect of the Charter on four universities’ mandatory retirement policies was at issue. In that case, La Forest J. elaborated on the rationalization for limiting the scope of the application of the Charter. Under the heading “The Application of the Charter”, La Forest J., after setting out s. 32(1), said at 261-62:
These words give a strong message that the Charter is confined to government action. This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, Dickson J. (as he then was) observed: “It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 490, Wilson J. noted that “the central concern of [s. 7 of the Charter] is direct impingement by government upon the life, liberty and personal security of individual citizens” (emphasis added). See also R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 347, per Dickson J.; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, especially at pp. 593-98; and Tremblay v. Daigle, [1989] 2 S.C.R. 530.
The exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice which must be respected. We do not really know why this approach was taken, but several reasons suggest themselves. Historically, bills of rights, of which that of the United States is the great constitutional exemplar, have been directed at government. Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom. Only government requires to be constitutionally shackled to preserve the rights of the individual. Others, it is true, may offend against the rights of individuals. This is especially true in a world in which economic life is largely left to the private sector where powerful private institutions are not directly affected by democratic forces. But government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity.
[Emphasis in original.]
[30] If a Charter breach is alleged against an entity specifically referred to in s. 32, that is, Parliament, the legislatures and government, then it is clear that the Charter applies with respect to that entity: Dolphin Delivery at 598-599; Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, 309 D.L.R. (4th) 277 at para. 14.
[31] Section 32 also refers to “all matters within the authority of” Parliament, the legislatures and government, thus extending the reach of the Charter to other entities. The reasons of La Forest J. in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, explain the rationale for the additional reach of the Charter under s. 32:
[48] ... Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are – as a simple matter of fact – governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies. In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter. Clearly, this course of action would indirectly narrow the ambit of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charter rights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender.
[32] In Eldridge at paras. 37-42, La Forest J. reviewed the position the Supreme Court had taken in relation to s. 32 in McKinney, Harrison, Stoffman, Douglas/Kwantlen Faculty Assn., and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211. He then provided the following summary of when the Charter may be found to apply:
[44] ... the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature – for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
[Emphasis added.]
[33] In Greater Vancouver Transportation Authority, Deschamps J., giving judgment for the Court, referred to what La Forest J. had said in Godbout and Eldridge, set out above, and then suggested two ways for determining whether the Charter applies to an entity’s activities:
[16] Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.
[34] In the case before us, no one suggests that VANOC is, by its very nature, a government entity. The judge concluded that government does not exercise substantial control over VANOC and the appellants do not take issue with that finding.
(a) The trial judge’s reasons on the s. 32 issue
[35] The question the judge posed in relation to s. 32 was whether staging the Games was a truly governmental activity. In that regard, she said, in part:
[53] I agree with VANOC that the celebration of any Olympic Games, including the 2010 Games, is a key component of the Olympic movement. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.
[54] In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature. In Stoffman, a hospital was found to be providing the public service of health care, but that did not qualify as a government function under s. 32. In [McKinney], La Forest J. described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.
...
[56] I am not aware of any case that has moved beyond the threshold of the two examples given by La Forest J. in Eldridge, but that does not mean that other truly governmental actions do not exist. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”....
[57] In my view, the governmental nature of staging the 2010 Games is evident from a review of the bid process ... and the contracts under which the 2010 Games are being staged.
...
[59] Vancouver, in conjunction with Canada, British Columbia, and the COC, made the decision to bid for and host the 2010 Games. That decision required financial commitments and commitments of effort and collective will. In British Columbia’s and Vancouver’s case, it also included a guarantee and indemnification with respect to any shortfall from the 2010 Games. The real cost to the provincial government of staging the 2010 Games has been estimated by the British Columbia Auditor General at $2.5 billion.
[60] The Host City Contract (Clause 1) says clearly that the 2010 Games were awarded to Vancouver. It states:
1. Entrustment of Organization of the Games
The IOC hereby entrusts the organization of the Games to the City and the NOC which undertake to fulfil their obligation in full compliance with the provisions of the Olympic Charter and of this Contract, including, without limitation, all matters referred to in the Appendices to this Contract, which, for greater certainty, are deemed to form part of this Contract.
[61] Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.
[62] In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.
[63] The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act, R S.C. 1985, c. 31 (4th Supp.), which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.
...
[65] In summary on this issue, VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing, and staging the 2010 Games.
[Emphasis added.]
(b) The parties’ submissions on the ascribed activity test
[36] In argument before us, the legal question of whether “VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing, and staging the 2010 Games” was highly contentious.
[37] The appellants recognize that VANOC is a private entity and that in hosting and staging the Games, VANOC is not engaged in the implementation of a statutory scheme on behalf of government. Instead, the appellants rely on the Multiparty Agreement in asserting that various commitments made by the three levels of government at the time the bid to host the Games was made demonstrate, as the judge found, that hosting and staging the Games is a governmental activity.
[38] There is a serious question, however, as to whether a contract entered into by government to provide infrastructure and to make up any shortfall in paying for liabilities of the Games falls within the “ascribed activity” test posited by La Forest J. in Eldridge. As noted earlier, the wording of s. 32 limits the application of the Charter. In this case, the relevant phrase to consider is “in respect of all matters within the authority of Parliament”.
[39] VANOC’s submissions on whether the particular activity in issue is an activity that can be ascribed to government focus directly on what drives the appellants’ complaint, that is, the selection of events to be staged at the Games.
[40] VANOC’s primary submission in the court below was that the activity relevant to the s. 32 determination is the selection of the events to be staged at the Games. While the judge acknowledged that VANOC’s argument is “an important issue”, she found that it “is better addressed as part of the s. 15 analysis in considering whether, within its delivery of the 2010 Games, VANOC has exercised its decision-making power so as to breach s. 15” (at paras. 49-51).
[41] As noted above, the trial judge held that VANOC’s hosting and staging of the Games is a governmental activity and, on that footing, held that VANOC is subject to the Charter. The judge went on to hold that the IOC decision to include only men’s ski jumping events is discriminatory but nevertheless concluded that “VANOC is not in breach of s. 15 of the Charter by staging the Programme of Olympic events determined by the IOC.” The judge dismissed the appellants’ application for the reasons she expressed in paragraphs 121 and 123 of her judgment:
[121] VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women’s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.
...
[123] In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.
[42] Before us, VANOC argues that the trial judge correctly identified why the appellants’ case must be dismissed; that is, VANOC does not determine which events are to be part of the 2010 Games. However, it is VANOC’s submission that the point can best be expressed legally in either of two ways:
(1) The Charter does not apply to the discrimination alleged in this case because the determination of the Olympic Programme is not an activity that can be ascribed to government. To the contrary, the Olympic Programme is wholly the IOC’s domain. Even if VANOC’s staging of events is properly held to be a governmental activity, which VANOC disputes, the decision whether or not certain events will be staged during the Games is not a governmental activity; it is simply not a decision any government or any OCOG (such as VANOC) may make. The decision not to include women’s ski jumping, therefore, is not a decision to which the Charter applies.
(2) The benefit of having an event included in the Olympic Programme is not a “benefit of the law” for the purposes of section 15. That benefit is bestowed by the IOC, not by or pursuant to any Canadian law. While the appellants have been denied a benefit, it is not a benefit that the law provides such that section 15 applies.
[43] As may be seen from the foregoing, VANOC’s submissions support the result reached by the trial judge but depart from her legal analysis.
(c) The application of s. 32 of the Charter
[44] Three levels of government entered into the Multiparty Agreement for the purpose of securing the 2010 Games with Vancouver as the Host City and did so in the absence of any statutory authority to support that purpose. In the circumstances, it is a nice question as to whether obligations in the Host City contract, which came into being after the IOC chose Vancouver as the host city and to which VANOC, but not government, is a party, can correctly be viewed as being a matter within the authority of government under s. 32 of the Charter.
[45] There is no dispute that both the IOC and VANOC are private entities as that term is understood in the jurisprudence. Nor can there be any dispute that under the terms of the Host City Contract (a standard contract required to be signed by an OCOG, here VANOC, if the bid were successful) VANOC is obliged to host and stage the Games under the direction and control of the IOC, the governing body of the Olympic Movement. Under the contract, no government has legal power to control VANOC even if government wished to do so. Like other private organizations, VANOC is subject to government regulation and it may depend in large measure on government funds to provide services and infrastructure, but VANOC must manage its affairs under the direction and control of the IOC. That the IOC controls VANOC is undisputed.
[46] Assuming, without deciding, that the trial judge was correct in concluding that the obligations contained in the Multiparty Agreement, aimed at securing the 2010 Games, and to which governments were parties, can be construed as a matter coming within the authority of government under s. 32 of the Charter, we are still left with the question of whether the selection of the events to be staged at those Games, which is the nub of the appellants’ complaint, could come under that umbrella.
[47] Nothing in the Multiparty Agreement suggests that it was a governmental obligation or function to determine, or to participate in determining, what events were to be selected for the Games. Nothing in the terms of the contract suggests that such a decision rests with a body other than the IOC, which must make the decision pursuant to the terms of the Olympic Charter.
[48] Under the Host City Contract, the IOC is recognized as having the exclusive authority to determine what events will be staged at an Olympic Games. Further, when the bid to host the Games was put forward though the Multiparty Agreement in 2003, the IOC had not yet selected the events for the 2010 Games. Given that all levels of government agreed to put forward a bid to host the Games in Vancouver before the slate of events was set, it is clear that the specific events to be staged were not important to the goals of government.
[49] The case authorities support the view that, in determining the scope of the application of the Charter to an entity such as VANOC, it is necessary to look not only to the activities or function of the entity itself but also to the nature or function of the specific act or decision of the entity that is said to infringe a Charter right. Regardless of whether VANOC’s hosting of the Games can properly be considered to be a governmental activity because of the substantial commitments made by the several levels of government to secure and hold the Games in Vancouver, it is clear on the facts that neither government nor VANOC had any authority either to make or to alter the decision of the IOC not to include a women’s ski jumping event in the 2010 Games. The decision of the IOC not to add women’s ski jumping as an event in the 2010 Games is not a “policy” choice that could be or was made by any Canadian government and the staging by VANOC of only those events authorized by the IOC cannot reasonably be viewed as furthering any Canadian government policy or program.
[50] As deciding which events to include in the 2010 Games is not an activity to which the Charter applies, the appellants’ claim of discrimination based on s. 15(1) of the Charter fails. However, as the matter was fully argued, we will address the appellants’ contention that denying them but not men the opportunity to compete in ski jumping denies them a “benefit of the law” guaranteed by s. 15(1).
IV. Section 15(1) of the Charter
[51] Section 15(1) reads:
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.
[52] The Supreme Court of Canada has described the analysis that is required to determine whether a s. 15(1) violation is made out in various ways. In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88, the Court described a three-part analysis:
[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?
[53] More recently, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, the Court suggested a two-stage approach:
[17] The template in Andrews [Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143], as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same.
[54] Significantly, both of these analyses require, as a first step, the identification of a law that creates a distinction on an enumerated or analogous ground. The necessity of identifying such a law stems from the language of s. 15(1). Section 15(1) sets out constitutional guarantees of equality that are broad in scope, but it does not constitute a general guarantee of equality. Rather, the section guarantees equality only in the way that the law affects individuals. Where the law is not implicated in discrimination or inequality, s. 15(1) is not engaged. This point was emphasized by McLachlin C.J., speaking for a unanimous court in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657:
[27] … The primary and oft-stated goal of s. 15(1) is to combat discrimination and ameliorate the position of disadvantaged groups within society. Its specific promise, however, is confined to benefits and burdens “of the law”. Combatting discrimination and ameliorating the position of members of disadvantaged groups is a formidable task and demands a multi-pronged response. Section 15(1) is part of that response. Section 15(2)’s exemption for affirmative action programs is another prong of the response. Beyond these lie a host of initiatives that governments, organizations and individuals can undertake to ameliorate the position of members of disadvantaged groups.
[28] The specific role of s. 15(1) in achieving this objective is to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis. This confines s. 15(1) claims to benefits and burdens imposed by law. As stated in R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1329:
The guarantee of equality before the law is designed to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others.
[29] Most s. 15(1) claims relate to a clear statutory benefit or burden. Consequently, the need for the benefit claimed or burden imposed to emanate from law has not been much discussed. Nevertheless, the language of s. 15(1) as well as the jurisprudence demand that it be met before a s. 15(1) claim can succeed.
[Emphasis by McLachlin C.J.]
[55] In Auton itself, while the impugned programs were operated by government, they did not provide the sorts of benefits that the plaintiffs in that case were seeking. There was, therefore, no inequality with respect to any “benefit of the law”. In short, there was nothing to which a claim under s. 15(1) could attach.
[56] In the case before us, the appellants’ greatest challenge is to demonstrate that the unequal benefit (the availability of men’s, but not women’s, ski jumping events) is in some way a product of “law”. On the face of it, the right to compete in a ski jumping event at the Olympics Games does not appear to be a “benefit of the law”. It is not a right deriving from legislation, nor is it conferred by a governmental entity. Instead, it derives from a decision by the IOC to hold an event. It is not suggested that the IOC is a law-making body. Further, the IOC’s decision not to hold a women’s ski jumping event at the 2010 Games is a decision that has not been endorsed by VANOC, or by any Canadian government body.
[57] The trial judge found that the contractual arrangements set out in the Multiparty Agreement and the Host City Contract were “law” for the purposes of s. 15(1). That was sufficient, in her view, to make the provision of ski jumping events at the 2010 Games a benefit of the law. She then analysed the case using the two-stage test set out in Kapp, and found both parts of the test to be satisfied in respect of the IOC’s decision to exclude women’s ski-jumping from the Games. She nonetheless found that there was no violation of s. 15(1), on the basis that VANOC did not have control over the decision.
[58] We agree with the trial judge’s conclusion that there is no violation of s. 15(1) of the Charter in this case. We also agree with her conclusion that VANOC’s lack of discretion over what events are included in the Games is a critical factor in the analysis. In our view, however, the nature of VANOC’s powers and the limits of its authority are best considered as components of the threshold analysis of whether the impugned distinctions can properly be categorized as failures to provide equal benefit of the law.
[59] In considering whether the contracts under which VANOC is staging the 2010 Games furnish the required nexus between the alleged discrimination and the law of Canada, the trial judge said this:
[69] ... I will address the threshold question of whether a contract entered into by a private entity that is not controlled by government can be the source of a “benefit of the law” within the meaning of s. 15.
[70] The benefit the plaintiffs say they are being denied is being delivered by VANOC under the Multiparty Agreement and the Host City Contract. It is clear that benefits delivered under a contract entered into by a government-controlled entity must be delivered in a manner consistent with s. 15 of the Charter: In Douglas College [Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570] at 585-86, La Forest J. said the following regarding the issue of whether the collective agreement was “law within the meaning of s. 15(1) of the Charter”:
For reasons discussed in McKinney v. University of Guelph [[1990] 3 S.C.R. 229], I am of the view that the collective agreement is law. It was entered into by a government agency pursuant to powers granted to that agency by statute in furtherance of government policy. The fact that the collective agreement was agreed to by the appellant association does not alter the fact that the agreement was entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating Charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated. The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age. It may be that age can constitute a rational basis for a party to agree to contract out of certain rights and thus be open to the defences of waiver or estoppel or again that it may in certain circumstances constitute a reasonable limitation under s. 1. These are issues, however, which were not before the Board or the courts below and I refrain from commenting upon them further.
[71] In McKinney at 276, La Forest J. said:
For section 15 of the Charter to come into operation, the alleged inequality must be one made by “law”. The most obvious form of law for this purpose is, of course, a statute or regulation. It is clear, however, that it would be easy for government to circumvent the Charter if the term law were to be restricted to these formal types of law-making. It seems obvious from what McIntyre J. had to say in the Dolphin Delivery case that he intended that exercise by government of a statutory power or discretion would, if exercised in a discriminatory manner prohibited by s. 15, constitute an infringement of that provision. At all events, this Court has now acted on this basis in Slaight Communications Inc. v. Davidson, [[1989] 1 S.C.R. 1038]; see also the remarks of Linden J. in Re McCutcheon and City of Toronto, [(1983), 147 D.L.R. (3d) 193], at p. 202. On the assumption that the universities form part of the fabric of government, I would have thought their policies on mandatory retirement would amount to a law for the purposes of s. 15 of the Charter. Indeed, in most of the universities, these policies were adopted by the universities in a formal manner. That being so, the fact that they were accepted by the employees should not alter their characterization as law, although this would be a factor to be considered in deciding whether under the circumstances the infringement constituted a reasonable limit under s. 1 of the Charter.
[72] The plaintiffs argue that s. 15 of the Charter should also apply to an entity that is not subject to government control but is delivering services that are truly governmental in nature under a contract. In my view, this is an incremental and principled extension of the Supreme Court of Canada’s purposive interpretation of the Charter. A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.
[Emphasis by trial judge.]
[60] In our view, the trial judge fell into error in treating the issue as one involving an “incremental and principled extension” to existing Charter jurisprudence. Neither Douglas/Kwantlen Faculty Assn. nor McKinney stands for the proposition that all obligations and entitlements under government contracts constitute “law” for the purposes of s. 15(1) of the Charter. Rather, they stand for the proposition that deliberately and formally adopted policies of government may constitute “law” notwithstanding that they are embodied in contractual documents rather than in legislative acts or statutory instruments.
[61] The rationale for extending the meaning of “law” in s. 15(1) to particular governmental actions taken by the executive was discussed in Eldridge:
21 The s. 32 jurisprudence of this Court has for the most part focused on the [legislation found to be unconstitutional on its face]. There is no doubt, however, that the Charter also applies to action taken under statutory authority. The rationale for this rule flows inexorably from the logical structure of s. 32. As Professor Hogg explains in his Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at pp. 34-8.3 and 34-9:
Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.
The sentiment of Lord Atkin in speaking of a constitutional prohibition addressed solely at the legislative branch is also apposite: “The Constitution”, he wrote, “is not to be mocked by substituting executive for legislative interference with freedom”; see James v. Cowan, [1932] A.C. 542 (P.C. Australia), at p. 558.
22 The question in the present case, then, is whether the alleged breach of s. 15(1) arises from the impugned legislation itself or from the actions of entities exercising decision-making authority pursuant to that legislation.
[62] For the purposes of s. 15(1) of the Charter, an action or provision will typically be considered “law” only if its validity derives from statutory authority. We say “typically” to leave open the possibility that actions or provisions that derive their authority from the royal prerogative or from the “ordinary” powers of the Crown might, in some circumstances, be considered “law”; that issue does not arise in this case. The case we are dealing with does not involve the exercise of any power flowing from the Crown.
[63] This case is, in our view, unlike the situations discussed in Douglas/Kwantlen Faculty Assn. and McKinney. In those cases, the Supreme Court was considering acts of agents of the Crown whose powers were wholly derived from statute. The defendant in this case, in contrast, is a private corporation with the powers of an ordinary person. It is not an agent of the Crown. It has authority to undertake its duties under the Host City Contract without the need for additional powers delegated by the Crown.
[64] There are other difficulties with the appellants’ argument that the decision to hold men’s, but not women’s, ski jumping events constitutes “law” for the purposes of s. 15(1) of the Charter. Even if the Multiparty Agreement or the Host City Contract qualified as “law” for the purposes of s. 15(1), the appellants would have to demonstrate that the policy that is the root of their complaint is embodied in those contracts. They are unable to do so. Indeed, as the appellants concede, the decision at issue in this case is within the exclusive authority of the IOC; VANOC has attempted to convince the IOC to include a women’s event in the 2010 Games, but has been unsuccessful.
[65] This is not a case, then, of a governmental body attempting to circumvent the Charter by exercising power through contract instead of through legislation. Rather, it is a case in which a non-governmental body is brought before the court as a result of policies which neither it nor any Canadian authority has the power to change.
[66] The appellants contend that the fact the discrimination they face is not VANOC’s fault is irrelevant. They argue that a party may be guilty of discrimination even where it has no intent to discriminate. We agree that the appellants need not show that discrimination against them is motivated by malice, or is otherwise deliberate. The issue in this case, however, is not intention, but rather control. VANOC simply does not have the power to determine what events are included in the 2010 Olympic programme. The word “law” in s. 15(1) of the Charter cannot be so broadly construed as to include policies or practices that no Canadian government has jurisdiction to enact or change.
[67] Accordingly, even if the Charter applied to VANOC in respect of the impugned conduct in this case, the appellants’ claims under s. 15(1) could not succeed. The availability of ski jumping events at the 2010 Games is simply not a “benefit of the law” for the purposes of s. 15(1).
V. Conclusion
[68] The appeal is dismissed. VANOC is entitled to costs, if costs are sought.
“The Honourable Madam Justice Rowles”
“The Honourable Mr. Justice Frankel”
“The Honourable Mr. Justice Groberman”
Saturday, November 21, 2009
Federal Court rules in favour of lesbian US war resister Bethany Smith (a.k.a Skyler James).
From the War Resisters Support Campaign:Victory! Federal Court rules in favour of lesbian US war resisterBethany Smith (a.k.a Skyler James) welcomes positive news in her effort to avoid deportation to the US militaryOTTAWA — Today a Federal Court in Ottawa ruled that the Refugee Board must re-assess the case from lesbian US war resister Bethany Smith (a.k.a "Skyler James"). Her story was first captured in a feature article by Capital Xtra soon after her arrival in Ottawa over two years ago.James came to Canada to escape what she describes as "daily humiliations" and "constant threats of physical violence" in the US military. Her lawyer has made a persuasive case against deporting her back to a situation where her very life could be at risk. As of today a Federal Court in Ottawa has compelled the Refugee Board to re-assess James's case based on new criteria. The decision is seen by supporters as major breakthrough in James's efforts to avoid deportation to the US military.+ + + +In case it's not clear, the federal court is sending James' case back to the IRB, the same thing that was done for Joshua Key. Thank [something] for an independent judiciary bringing sanity back to this politically tainted IRB process.
L-girl said...
Friday, November 20, 2009
referring all questions to the media relations oh that looks good Not!!
A who's who of officials named in Richard Colvin's testimony
Last Updated: Friday, November 20, 2009 12:09 PM ET Comments4Recommend7
CBC News
David Mulroney
Position: Former deputy minister of the federal government's Afghan Task Force, now Canada's ambassador to China.
Response to Colvin's testimony: CBC correspondent Anthony Germaine tried to contact Mulroney but was rebuffed by embassy public affairs officials.
Rick Hillier
Position: Former Chief of the Defence Staff, Canadian Forces.
Response to Colvin's testimony: Hillier says he can't recall reading Colvin's notes. He says the military, as well as the federal government, were concerned about torture in Afghanistan all along. Hillier says the one credible report of torture the military received was in October 2007. The general who commanded Canada's Task Force Kandahar at the time, Brig.-Gen. Guy Laroche, immediately halted transfers until new arrangements could be put in place to monitor Afghan prisons. This order was enacted by his deputy, Col. Christian Juneau. Watch the video of Hillier's comments during a Thursday event in Toronto.
Margaret Bloodworth
Position: Former national security adviser to the Prime Minister Stephen Harper, one of the most senior positions in the prime minister's personal ministry, the Privy Council Office. Bloodworth is now retired. Colvin included Bloodworth on some of his reports.
Response: Bloodworth has so far refused to return calls to her home or to her cellphone.
Jill Sinclair
Position: Former assistant secretary to the cabinet for foreign and defence policy. Sinclair is now the assistant deputy minister (policy) at Department of National Defence. Sinclair was copied on some of Colvin's memos.
Response to Colvin's testimony: Sinclair referred all questions to the public affairs office at DND.
Colleen Swords
Position: Former assistant deputy minister in the international security branch of Foreign Affairs, now associate deputy minister at Indian and Northern Affairs. Swords was ultimately Colvin's boss when he worked in Kandahar. She was copied on some of Colvin's memos.
Response to Colvin's testimony: Swords has refused to comment, referring all questions to the media relations desk at the Department of Foreign Affairs.
David Sproule
Position: Former ambassador to Afghanistan in 2006 and part of 2007. Sproule is now the deputy legal adviser and director general of the Legal Affairs Bureau at Foreign Affairs. Sproule was Colvin's boss in Kandahar and was included on some of Colvin's memos.
Response to Colvin's testimony: Sproule referred all questions to the communications desk at the Afghanistan Task Force.
Arif Lalani
Position: Former ambassador to Afghanistan in 2007 and 2008. Lalani was Colvin's boss in Afghanistan. He approved some of Colvin's memos detailing allegations of torture. Colvin alleges Lalani later started to censor Colvin's reports from Afghanistan.
Response to Colvin's testimony: Lalani has not responded to an email request from CBC News for comment.
Michel Gauthier
Position: Retired lieutenant-general who was the former commander of Canadian Expeditionary Force Command. Gauthier was responsible for all of the Canadian Forces' overseas missions. He ran Canada's military mission in Kandahar from his Ottawa headquarters. Colvin says he sent some of his memos to Gauthier.
Response to Colvin's testimony: In an email to CBC News, Gauthier said the following:
"First of all let me say I am deeply troubled by Mr. Colvin's testimony before the Special Committee. It's pretty clear, from what he said yesterday, that he has for some time had a deep-seated concern about Govt of Canada practices regarding detainees. I look forward to providing an absolutely frank view of some key aspects of Mr. Colvin's testimony when I appear before the committee next week.
"In the meantime, I simply want to assure you and all Canadians that, in my capacity as Commander of CEFCOM, I very clearly understood my responsibilities under international law with respect to the handling of detainees, and I would certainly not knowingly have done anything — ever — to expose our soldiers and commanders in the field, our government, or myself to complicity in war crimes or other wrongdoing as Mr. Colvin suggests. I can also say with complete confidence that personnel under my command were not in the habit, as a matter of either policy or practice, of ignoring important reports from the field, quite the opposite. In light of our potential liability as commanders under international law, one would have to ask why any of us would knowingly and deliberately ignore substantial evidence from the field that could ultimately implicate us in a war crime.
"I applaud Mr. Colvin's courage in coming forward, but there will evidently be more than one side to this story. "
Last Updated: Friday, November 20, 2009 12:09 PM ET Comments4Recommend7
CBC News
David Mulroney
Position: Former deputy minister of the federal government's Afghan Task Force, now Canada's ambassador to China.
Response to Colvin's testimony: CBC correspondent Anthony Germaine tried to contact Mulroney but was rebuffed by embassy public affairs officials.
Rick Hillier
Position: Former Chief of the Defence Staff, Canadian Forces.
Response to Colvin's testimony: Hillier says he can't recall reading Colvin's notes. He says the military, as well as the federal government, were concerned about torture in Afghanistan all along. Hillier says the one credible report of torture the military received was in October 2007. The general who commanded Canada's Task Force Kandahar at the time, Brig.-Gen. Guy Laroche, immediately halted transfers until new arrangements could be put in place to monitor Afghan prisons. This order was enacted by his deputy, Col. Christian Juneau. Watch the video of Hillier's comments during a Thursday event in Toronto.
Margaret Bloodworth
Position: Former national security adviser to the Prime Minister Stephen Harper, one of the most senior positions in the prime minister's personal ministry, the Privy Council Office. Bloodworth is now retired. Colvin included Bloodworth on some of his reports.
Response: Bloodworth has so far refused to return calls to her home or to her cellphone.
Jill Sinclair
Position: Former assistant secretary to the cabinet for foreign and defence policy. Sinclair is now the assistant deputy minister (policy) at Department of National Defence. Sinclair was copied on some of Colvin's memos.
Response to Colvin's testimony: Sinclair referred all questions to the public affairs office at DND.
Colleen Swords
Position: Former assistant deputy minister in the international security branch of Foreign Affairs, now associate deputy minister at Indian and Northern Affairs. Swords was ultimately Colvin's boss when he worked in Kandahar. She was copied on some of Colvin's memos.
Response to Colvin's testimony: Swords has refused to comment, referring all questions to the media relations desk at the Department of Foreign Affairs.
David Sproule
Position: Former ambassador to Afghanistan in 2006 and part of 2007. Sproule is now the deputy legal adviser and director general of the Legal Affairs Bureau at Foreign Affairs. Sproule was Colvin's boss in Kandahar and was included on some of Colvin's memos.
Response to Colvin's testimony: Sproule referred all questions to the communications desk at the Afghanistan Task Force.
Arif Lalani
Position: Former ambassador to Afghanistan in 2007 and 2008. Lalani was Colvin's boss in Afghanistan. He approved some of Colvin's memos detailing allegations of torture. Colvin alleges Lalani later started to censor Colvin's reports from Afghanistan.
Response to Colvin's testimony: Lalani has not responded to an email request from CBC News for comment.
Michel Gauthier
Position: Retired lieutenant-general who was the former commander of Canadian Expeditionary Force Command. Gauthier was responsible for all of the Canadian Forces' overseas missions. He ran Canada's military mission in Kandahar from his Ottawa headquarters. Colvin says he sent some of his memos to Gauthier.
Response to Colvin's testimony: In an email to CBC News, Gauthier said the following:
"First of all let me say I am deeply troubled by Mr. Colvin's testimony before the Special Committee. It's pretty clear, from what he said yesterday, that he has for some time had a deep-seated concern about Govt of Canada practices regarding detainees. I look forward to providing an absolutely frank view of some key aspects of Mr. Colvin's testimony when I appear before the committee next week.
"In the meantime, I simply want to assure you and all Canadians that, in my capacity as Commander of CEFCOM, I very clearly understood my responsibilities under international law with respect to the handling of detainees, and I would certainly not knowingly have done anything — ever — to expose our soldiers and commanders in the field, our government, or myself to complicity in war crimes or other wrongdoing as Mr. Colvin suggests. I can also say with complete confidence that personnel under my command were not in the habit, as a matter of either policy or practice, of ignoring important reports from the field, quite the opposite. In light of our potential liability as commanders under international law, one would have to ask why any of us would knowingly and deliberately ignore substantial evidence from the field that could ultimately implicate us in a war crime.
"I applaud Mr. Colvin's courage in coming forward, but there will evidently be more than one side to this story. "
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