When Is A Rule Not The Law? A Note On Tan And Comity In The Federal Court Of Appeal

Background

Last month, the Federal Court of Appeal issued its latest decision on judicial comity, Tan v. Canada (Attorney General).1 Tan is noteworthy for being just the third decision of the Federal Court of Appeal decided by a panel of five judges,2 and for expressly overruling an earlier Federal Court of Appeal decision, Forest v. Canada (Attorney General).3

Tan, who had no citizenship or immigration status in Canada, was convicted of murder and sentenced to imprisonment at the Mission Institute, a federal correctional facility. After commiting his crime as a visitor, he fled Canada but was extradited back to face charges. He was ordered to be deported for serious criminality, which was stayed by statute for the duration of his custodial sentence.

Tan, a Buddhist, complained to the Canadian Human Rights Commission (the "Commission") that the Mission Institution discriminated against him based on religious grounds by refusing to provide him access to a Buddhist chaplain.

The issue was whether Tan was "lawfully present in Canada" within the meaning of paragraph 40(5)(a) and subsection 40(6) of the Canadian Human Rights Act ("CHRA"). If not, the Commission could not consider his complaint. Those provisions read:

40. (5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice

(a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;...

(6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the commission shall refer to question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant. Emphasis added

The Commission referred the issue of Tan's status to the Minister of Citizenship and Immigration, who responded that Tan "did not have any status as a temporary resident, permanent resident or citizen of Canada".

In Forest, the Minister's advice that a complainant lacked immigration status meant the complainant was not "lawfully present in Canada".4 Applying Forest, the Commission dismissed Tan's complaint. The Federal Court dismissed Tan's application for judicial review.

At the Federal Court of Appeal, both sides argued that Forest was wrongly decided and that Tan was lawfully present at the time of the alleged discrimination. The Federal Court of Appeal agreed and overruled its prior decision. The majority held that the only reasonable conclusion was that Tan was "lawfully present in Canada" and remitted the merits of the complaint to the Commission.5 The dissent would also have remitted the question of Tan's lawful presence.6

The decision squarely raised the issue of comity at the Federal Court of Appeal.

Comity and Stare Decisis in the Federal Court of Appeal

The doctrine of comity seeks to prevent the same legal issue from being decided differently at different times by the same court.7...