Date: 20080131
Docket: A-37-08
Citation: 2008 FCA 40
Present: RICHARD
C.J.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUNCIL OF CHURCHES,
AMNESTY INTERNATIONAL, and
JOHN DOE
Respondents
REASONS FOR ORDER
[1]
The
appellant, who was the respondent in the Federal Court, seeks an Order staying
the Judgment of Justice Phelan dated January 17, 2008 allowing the respondents’
application for a declaration invalidating the Agreement Between the
Government of Canada and the Government of the United States of America for Cooperation
in the Examination of Refugee Status Claims from Nationals of Third Countries,
also known as the Safe Third Country Agreement (STCA) between the
Government of Canada and the Government of the United States of America (U.S.)
(Canadian Council for Refugees v. Canada, [2007] F.C.J. No. 1583, 2007
FC 1262).
[2]
The STCA
is an agreement pursuant to subsection 102(1) of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA) for the purpose of sharing
responsibility with governments of foreign states for the consideration of
refugee claims. The essence of the STCA is expressed at article 4(1), which
states that “[t]he Party of the country of last presence shall examine, in
accordance with its refugee status determination system, the refugee status
claim of any person who arrives at a land border port of entry […] and makes a
refugee status claim”. Similar agreements between European Union (EU) member
states have existed for many years.
[3]
Justice
Phelan held that the Governor in Council exceeded its jurisdiction when it
adopted Regulations designating the U.S. a safe third country and putting into
operation the STCA, as he was of the view that the U.S. did not comply with its
non-refoulement obligations under article 33 of the Convention relating to
the Status of Refugee, 189 U.N.T.S. 150 (April 22, 1954), or the Refugee
Convention (RC), and article 3 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (June 26, 1987)
or Convention against Torture (CAT). He further held that the return of
a refugee claimant from Canada for a refugee determination by the U.S. asylum and refugee system would violate
sections 7 and 15 of the Charter of Rights and Freedoms (Charter)
because of the U.S.’s apparent failure to comply
with its non-refoulement obligations.
[4]
Justice
Phelan’s judgment will become effective on February 1, 2008, at which point the
STCA, which has been in effect since December 2004, will cease to operate in Canada.
[5]
The
appellant seeks an Order to stay Justice Phelan’s judgment until such time as this
Court has had an opportunity to consider and render its decision.
[6]
The
appellant submits that the requirements of a stay have been met as: there are
serious issues to be determined, the appellant will suffer irreparable harm and
the balance of convenience favours the appellant. The appellant also requests
that this proceeding be expedited.
[7]
A brief
history of the STCA between Canada and the United States and its implementation in Canada is found in the affidavit of
Bruce A. Scoffield sworn September 19, 2006 which was filed in the proceedings
before Justice Phelan. Mr. Scoffield is the Director for Operational
Coordination in the International Region, Citizenship and Immigration Canada.
Canada and
the U.S. have a long
history of cooperation relating to the movement of persons across their shared
border. A formal joint commitment to bilateral responsibility sharing came in
1995 through the adoption of the “Shared Border Accord” (“SBA”). In December
1995, a preliminary draft of a responsibility sharing agreement based on the
Safe Third Country concept was made public. […] (para. 16)
[…]
This joint
commitment was reaffirmed on December 12, 2001 when the then Minister of
Foreign Affairs, the Honourable John Manley, and the Director of the U.S.
Office of Homeland Security, Governor Tom Ridge, announced
the “Smart Border Declaration” and associated Action Plan. The Declaration and
Action Plan committed the two governments to collaborative efforts to enhance
the security of our shared border while facilitating the legitimate flow of
people and goods. One of the thirty-two specific commitments agreed in the
Action Plan was the negotiation of a bilateral safe third country agreement.
(para. 19)
[…]
Canada and the U.S. signed the
Agreement on December 5, 2002. In its preamble, the two governments set out
their objectives related to international cooperation, burden and
responsibility sharing. The two governments recognized that the sharing of
responsibility for refugee protection must include access to a full and faire
refugee status determination in order to guarantee the effective implementation
of the Refugee Convention and the Convention against Torture. […] (para. 24)
The Agreement
applies to situations where a refugee claim is made to one party by a refugee
claimant who arrives at a land border port of entry directly from the territory
of the other party. The Agreement generally assigns responsibility for
adjudicating refugee claims in such cases to the “country of last presence”.
[…] For the moment, the Agreement is limited in application to refugee claims
made at ports of entry where the movement of refugee claimants across the
border can easily be observed and the country of last presence can readily be
established. […] (para. 25)
Following a
final round of negotiations on the Agreement in the fall of 2002, authority was
sought, further to IRPA s. 102(1)(a), to designate the U.S. as a
country that complies with Article 33 of the Refugee Convention and Article 3
of the Convention against Torture and approval of the Agreement and authority
to sign it was al so requested. IRPA s. 102(2) required that the
Governor in Council consider four factors when considering designating a
country as safe. These are: (1) whether it is a party to the Refugee Convention
and the Convention against Torture; (2) its policies and practices with respect
to claims under the Refugee Convention and with respect to its obligations
under the Convention against Torture; (3) its human rights record; and (4)
whether it is party to an agreement with the Government of Canada for the
purpose of sharing responsibility with respect to claims for refugee
protection. (para. 26)
[…]
Draft
implementing regulations were pre-published in the Canada Gazette Part I
on October 26, 2002. During the public comment period, the government received
input from academics, members of the legal community and NGOs. The UNHCR also
provided comments relating to the draft regulations. […] In November 2002, the
House of Commons Standing Committee on Citizenship and Immigration held
hearings on the draft regulations, and subsequently released a report
recommending a number of amendments. The government response to that report was
tabled in the Hose of Commons on May 1, 2003, and noted that the Government
accepted, in whole or in part, twelve out of seventeen recommendations made by
the committee. […] (para. 28)
[…]
Final
regulations were published in the Canada Gazette Part II on November 3,
2004. […] (para. 31)
Two
additional rounds of consultations were undertaken by the Government prior to
implementation of the Agreement, focusing on the development of operational
instructions and manuals. […] (para. 32)
[…]
A monitoring
plan for UNHCR staff in both Canada and the U.S. was jointly
agreed upon by each government. UNHCR’s mandate under this plan is to assess
whether implementation of the Agreement is consistent with its terms and
principles as well as with international refugee law. […](para. 34)
[…]
The UNHCR is
presently engaged with the two governments in a review of the first year of the
Agreement’s implementation which addresses, inter alia, specific
observations and recommendations made by UNHCR as a result of its monitoring
activities. Although the review is not yet final, UNHCR’s Representative did
provide an overview of UNHCR’s assessment of the Agreement’s first year to the
Standing Committee on Citizenship and Immigration when he appeared as a witness
on May 29, 2006. In his remarks, Mr. Asadi noted that overall UNHCR’s findings
were positive. (para. 36)
[…]
In response
to a question from a member of the Committee, Mr. Asadi went on to state that
“We consider the U.S. to be a safe country. Otherwise we would have
not agreed to do this monitoring and we would have said so at the very
beginning.” […] (para. 38)
[…]
Distinct from
the monitoring and oversight of implementation of the Agreement itself is the
Government’s continuing review of the factors relevant to the designation of
the U.S. as a safe
third country. Prior to the signing of the Agreement and since its
implementation, the Government has continued to monitor developments in U.S.
law and policy which could have an impact on the integrity of the Agreement, as
mandated by the November 2004 Order in Council on directives for ensuring a
continuing review of factors set out in s. 102(3) of IRPA with respect
to countries designated under s. 102(1)(a) of IRPA. The Government makes
use of numerous sources of information to this end, including academic and NGO
commentary, diplomatic reporting from Canadian missions in the U.S., our ongoing
dialogue with the UNHCR, and regular exchanges with American officials. […] (para.
42)
[8]
In
summary, Canada and the United States entered into an agreement to
share responsibility for the determination of refugee claims. The rationale for
this agreement is to ensure that refugee claimants have access to one full and
fair refugee status determination procedure and that refugee claims are handled
in an orderly and efficient manner.
[9]
The
Governor in Council (GIC) promulgated regulations under the authority of
subsections 102(1) and 5(1) of the IRPA to implement the STCA. Subject
to express exceptions, the STCA requires refugee claimants to seek protection
in whichever of the two countries they first enter.
[10]
The
respondents in this appeal, the applicants in the proceeding before Justice
Phelan, three advocacy groups and one individual, challenged the validity of
the GIC’s designations of the U.S. as a safe third country.
[11]
Justice
Phelan declared the regulations ultra vires and contrary to sections 7
and 15 of the Charter on the ground that the U.S. is not a safe third country that
complies with the non-refoulement requirements of article 33 of the Refugee
Convention and article 3 of the Convention Against Torture.
[12]
The result
of invalidating sections 159.1-159.7 of the Immigration Refugee Protection
Regulations is the termination of the operation of the STCA in Canada.
[13]
In
allowing the application, Justice Phelan certified the following questions:
1.
Are
paragraphs 159.1 to 159.7 (inclusive) of the Immigration and Refugee
Protection Regulations and the Safe Third Country Agreement between Canada
and the United
States of America
ultra vires and of no legal force and effect?
2.
What is
the appropriate standard of review in respect of the Governor-in-Council’s
decision to designate the United
States of America
as a “safe third country” pursuant to s. 102 of the Immigration and Refugee
Protection Act?
3.
Does the
designation of the United States of America as a “safe third country” alone or
in combination with the ineligibility provision of clause 101(1)(e) of
the Immigration and Refugee Protection Act violate sections 7 and 15 of
the Canadian Charter of Rights and Freedoms and is such violation
justified under section 1?
[14]
The
appellant has appealed the judgment by a notice of appeal dated January 18,
2008. The appellant brings this motion under Rule 398(1)(b) of the Federal
Court Rules for a stay of the Judgment pending the determination of the
appeal, and seeks an Order expediting the appeal proceedings.
[15]
This Court
has authority to grant a stay pending an appeal before it, including the stay
of an order that declares legislation to be invalid or that infringes the Charter
pending a final determination of the issues.
[16]
Rule
398(1)(b) of the Federal Courts Rules, SOR/98-106, as amended,
permits this Court to stay an Order of the Federal Court:
|
398.(1) On the
motion of a person against whom an order has been made,
(a) where the order
has not been appealed, the court that made the order may order that it be
stayed; or
(b) where a notice of
appeal of the order has been issued, a judge of the court that is to hear the
appeal may order that it be stayed.
|
398.(1) Sur
requête d’une personne contre laquelle une ordonnance a été rendue :
a) dans le cas où
l’ordonnance n’a pas été portée en appel, la cour qui a rendu l’ordonnance
peut surseoir à l’ordonnance;
b) dans le cas où un
avis d’appel a été délivré, seul un juge de la cour saisie de l’appel peut
surseoir à l’ordonnance.
|
[17]
Stays
pending the disposition of an appeal are granted on the same bases as
interlocutory injunctions.
[18]
A
three-stage test is applied to applications for interlocutory injunctions and
for stays in private law and Charter cases. At the first stage, the
applicant must demonstrate a serious question to be tried. The threshold to
satisfy this test is a low one. At the second stage, the applicant must
establish that it will suffer irreparable harm if the relief is not granted.
The third stage requires an assessment of the balance of inconvenience and it
will often determine the result in applications involving Charter rights.
The same principles apply when a government authority is the applicant.
However, the issue of public interest will be considered at both the second stage
as an aspect of irreparable harm to the government’s interests and the third stage
as part of the balance of convenience (RJR-MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R. 311).
Serious Issue
[19]
Justice
Phelan certified three serious questions of general importance which I have
referred above in paragraph 13.
[20]
In
addition to the certified questions, the applicant for a stay raises other issues
concerning the judge’s findings of fact.
[21]
The
respondents do not dispute that there are serious issues raised in this case
based on the questions certified by Justice Phelan. However, they do not accept
the further issues raised by the appellant.
[22]
The issues
raised on appeal are not frivolous or vexatious. Therefore, the applicant has
satisfied the first stage of the three-fold test for a stay.
Irreparable Harm
[23]
Irreparable
harm refers to the nature of the harm suffered rather than its magnitude.
[24]
The issue
of public interest, as an aspect of irreparable harm to the interest of the
government, will be considered at the second stage as well as the third stage (RJR-MacDonald,
above, at para. 81).
[25]
The
Supreme Court of Canada has held that the public interest is to be widely
construed in Charter cases:
71. In our
view, the concept of inconvenience should be widely construed in Charter cases.
In the case of a public authority, the onus of demonstrating irreparable harm
to the public interest is less than that of a private applicant. This is partly
a function of the nature of the public authority and partly a function of the
action sought to be enjoined. The test will nearly always be satisfied simply
upon proof that the authority is charged with the duty of promoting or
protecting the public interest and upon some indication that the impugned
legislation, regulation, or activity was undertaken pursuant to that responsibility.
Once these minimal requirements have been met, the court should in most cases
assume that irreparable harm to the public interest would result from the
restraint of that action.
72. A
court should not, as a general rule, attempt to ascertain whether actual harm
would result from the restraint sought. To do so would in effect require
judicial inquiry into whether the government is governing well, since it
implies the possibility that the government action does not have the effect of
promoting the public interest and that the restraint of the action would
therefore not harm the public interest. The Charter does not give the courts a
licence to evaluate the effectiveness of government action, but only to
restrain it where it encroaches upon fundamental rights (emphasis added) (RJR-MacDonald,
para. 73).
[26]
As noted
by the Supreme Court of Canada in RJR-MacDonald, above, the public
interest considerations will weigh more heavily in a suspension case than in an
exemption case where the public interest is more likely to be detrimentally
affected. Since the operation of the STCA would be suspended by the operation
of the judge’s order, this is clearly a suspension case.
[27]
The
applicant for a stay alleges that the appellant will suffer irreparable harm in
other respects, which can be summarized as the likelihood of an influx of
refugees into Canada from the United States and the corresponding
negative impact on border services. This allegation is supported by the
affidavit of George Bowles sworn on December 17, 2007.
[28]
The
respondents claim that irreparable harm does not exist merely when there will
be administrative inconvenience or expense.
[29]
The
respondents submit that the appellant will not suffer irreparable harm if
Justice Phelan’s declaration is permitted to take effect. In the alternative,
the respondents submit that irreparable harm will be suffered on both sides,
but that the harm to the respondents outweighs any alleged harm claimed by the
appellant. However, at this second stage of the test, the Court is called upon
to consider the harm that the applicant will suffer if the stay is not granted.
[30]
I am
satisfied that the applicant for a stay has satisfied the second requirement of
the three-stage test.
Balance of convenience
[31]
Since the
applicant is a government institution, the Court must consider the applicant’s
inconvenience as well as the respondents’ convenience.
[32]
Once there
is some indication that the impugned legislation, regulation, or activity was
undertaken pursuant to the government’s responsibility for promoting the public
interest, a legislative scheme under attack is presumed to benefit the public
interest, RJR-MacDonald, above, at paras. 71-80.
[33]
These
principles were subsequently reiterated in Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764, at
para. 9:
It follows
that in assessing the balance of convenience, the motions judge must proceed on
the assumption that the law – in this case the spending limits imposed by s.
350 of the Act – is directed to the public good and serves a valid [page 771]
public purpose. This applies to violations of the s. 2(b) right of freedom of
expression; indeed, the violation at issue in RJR—MacDonald was of s. 2(b). The
assumption of the public interest in enforcing the law weighs heavily in the
balance. Courts will not lightly order that laws that Parliament or a
legislature has duly enacted for the public good are inoperable in advance of
complete constitutional review, which is always a complex and difficult matter.
It follows that only in clear cases will interlocutory injunctions against the
enforcement of a law on grounds of alleged unconstitutionality succeed
(emphasis added).
[34]
I do not
accept the respondents’ contention that the presumption that the STCA
Regulations are in the public interest has been displaced by the judgment of
the Federal Court. This judgment is under appeal and the presumption of public
interest remains pending complete constitutional review.
[35]
The public
interest groups, who are the respondents in this application for a stay, will
suffer no personal harm. The respondent, John Doe, has been living in the United States since 2000 and his claim for
protection is still pending.
[36]
However, “public
interest” includes both the concerns of society generally and the particular
interests of identifiable groups (RJR-MacDonald, above, at para. 66).
[37]
When a
private applicant alleges that the public interest is at risk, that harm must
be demonstrated (RJR-MacDonald, above, at para. 68).
[38]
The
respondents relied on three affidavits (the Moreno affidavit, the Giantonio affidavit and
the Benatta affidavit) to demonstrate the public interest component of their
position.
[39]
The Moreno
affidavit states that she was granted refugee status in Canada but that her common-law
partner was not and was returned to the U.S. and detained. He was subsequently
deported to Honduras and three months later he was
killed. There is no evidence that he made a refugee claim in the U.S. or of the circumstances surrounding his
deportation.
[40]
Patrick
Giantonio is the Executive Director of the Vermont Refugee Assistance. He gave
three examples of individuals who sought refugee status in Canada but were
found ineligible due to the STCA and were deported back to Columbia by the U.S. There is no information concerning the
proceedings followed in the U.S.
[41]
The
Benatta affidavit establishes that, on the same day Mr. Benatta’s U.S. asylum claim was rejected in December
2001, he was indicted for possession of false documents. These charges were
subsequently dropped by a judge who described them as “a shame”. However, Mr.
Benatta remained in detention until 2006 when he was allowed to return to Canada to resume his claim for
refugee protection.
[42]
A further
affidavit filed by the applicant for a stay (the Soskin affidavit) discloses that
Mr. Benatta did get a hearing for his asylum application in the U.S. on two occasions. By Statement of Claim
dated July 16, 2007 filed in the Ontario Superior Court of Justice, Mr. Benatta
commenced an action against The Queen in Right of Canada and various government
agencies claiming damages arising out of his alleged illegal transfer to
authorities in the U.S. This claim has yet to be
adjudicated.
[43]
The
affidavit of David Martin, a professor of law at the University of Virginia,
with over 27 years of experience in the study and practice of U.S.
immigration and refugee law, sworn July 31, 2006 and filed on behalf
of the applicant for a stay, states as follows:
229.
Therefore, although there have been some unfortunate and misguided steps taken
by the U.S. government or certain of its personnel in the treatment of
prisoners in government custody, the U.S. legal system ultimately responded and
has now set forth explicit laws and rulings both forbidding cruel, inhuman, and
degrading treatment and dictating that detainees are covered, at a minimum, by
common Article 3 of the Geneva Conventions.
[44]
The three
affidavits filed by the respondents do not establish that the public interest
is at risk in accordance with the standard established by the Supreme Court of
Canada.
[45]
In his
reasons for judgment, Justice Phelan identified three issues, which
individually and collectively undermine the reasonableness of the GIC’s
conclusion of U.S. compliance: 1) the rigid application of the one-year bar to
refugee claims; 2) the provisions governing security issues and terrorism based
on a lower standard, resulting in a broader sweep of those caught up as alleged
security threats/terrorists; and the absence of the defence of duress and
coercion; 3) the vagaries of U.S. law which put women, particularly those
subject to domestic violence, at real risk of return to their home country
(Reasons for Judgment, para. 239).
[46]
The
respondents argue that, for the time being at least, this decision represents
the law. However, it is this very decision that is the subject of an appeal and
constitutional review in this Court.
[47]
At the
hearing, counsel for the respondents suggested as an alternative to a stay of
the Order of Justice Phelan that the Court consider granting a stay exempting the
groups referred to by Justice Phelan in paragraph 239 of his reasons from the
application of the STCA.
[48]
Counsel
for the applicant for a stay argued that this proposal would have the same
effect as a suspension of the Regulations.
[49]
Counsel
for the applicant for a stay noted that the STCA has been in effect now for more
than three years (December 29, 2004 to January 18, 2008).
[50]
Applying
the principles enunciated in the decisions of the Supreme Court of Canada and
without pre-judging the outcome of any appeal, I am satisfied that the public
interest in maintaining in place the Regulations made pursuant to legislative
authority pending complete constitutional review outweighs any detriment.
[51]
I find
that the balance of convenience favours granting the stay pending the appeal
from the judgment of the Federal Court.
Disposition
[52]
I conclude
that the issues in this appeal deserve
full appellate review on their merits before ordering a suspension of the Safe
Third Country Agreement between the Government of Canada and the Government
of the United States of America (U.S.) and that the application for a stay should
be granted.
[53]
Accordingly,
the Judgment of Justice Phelan dated January 17, 2008 (Reasons for Judgment
2007 FC 1262, November 29, 2007) invalidating the Regulations implementing the Safe
Third Country Agreement between the Government of Canada and the Government
of the United States of America (U.S.) will be stayed until such
time as this Court has heard and determined the appeal.
[54]
The
respondents agree with the appellant that it would be in the interest of
justice to expedite this appeal and the Court so orders. Accordingly, counsel
for the parties to the appeal will provide the Court with a schedule for the timely
completion of the steps in the appeal together with a requisition for a hearing.
"J. Richard"
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