Date: 20080502
Docket: A-37-08
Citation: 2008 FCA 171
Present: EVANS
J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUCIL OF CHURCHES,
AMNESTY INTERNATIONAL, and
JOHN DOE
Respondents
REASONS FOR ORDER
EVANS J.A.
[1]
I have
before me a motion in writing brought on behalf of Her Majesty the Queen, the
appellant, to adduce fresh evidence in an appeal from a decision of the Federal
Court (Canadian Council for Refugees v. Her Majesty the Queen, 2007 FC
1262), which is to be heard by this Court later this month. The respondents
oppose the motion.
[2]
In the decision
under appeal, Justice Phelan granted an application for judicial review by the Canadian
Council for Refugees and others, and held invalid sections
159.1-159.7 of the Immigration and Refugee Protection Regulations, SOR/2002-227,
and the Safe Third Country Agreement between Canada and the United States of America.
[3]
On the
basis of the evidence adduced before him, Justice Phelan held that it was
unreasonable for the Governor in Council to have designated the United States as a safe third country the
policies and practices of which complied with Article 33 of the Refugee
Convention and Article 3 of the Convention Against Torture. Accordingly,
he held that the Agreement and the impugned provisions of the Regulations were ultra
vires the enabling legislation, section 102 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), and violated
sections 7 and 15 of the Canadian Charter of Rights and Freedoms and
were not saved by section 1.
[4]
One aspect
of refugee protection policy and practice of the United States discussed by Justice Phelan concerned
the exclusion from refugee protection of those involved with terrorism,
including persons who have provided “material support” to terrorist activities
or organizations. However, United
States’ law
permits the waiver of the terrorism exclusion. Justice Phelan held that these
provisions were overbroad and could result in the refoulement of
refugees contrary to Article 33 of the Refugee Convention, including those who
had been coerced into providing “material support” to a terrorist group. This
finding was one of the bases of his conclusion that it was unreasonable for the
Governor in Council to have designated the United States as being in compliance with the Refugee
Convention.
[5]
The fresh
evidence sought to be adduced by the appellant is contained in a third
supplementary affidavit (supported by four exhibits) affirmed by Professor
David A. Martin, an expert in immigration and refugee law in the United States. It describes legal
developments in the United
States
concerning the terrorism exclusion and waiver, which occurred after February
2007, when the hearing before Justice Phelan was held.
[6]
The fresh
evidence comprises notices published in the Federal Register in March 2007
applying the waiver to certain named groups, notices published in March and May
2007 setting up a procedure for waiving, case-by-case, the exclusion of those
who had provided “material support” under duress to terrorist groups or
activities, statutory changes respecting the use of waivers, and a summary
describing these developments.
[7]
This
evidence is designed to respond to Justice Phelan’s finding (at para. 186) that
there was “insufficient evidence that the waiver, either in principle or in
practice ameliorates the unusually harsh provisions of the U.S. law.” Justice Phelan was advised at the
hearing that the Department of Homeland Security was in the process of
developing policy on the application of the waiver to asylum cases. Thus, in a
sense, Professor Martin’s affidavit merely “updates” evidence that had been before
the Applications Judge.
[8]
Fresh
evidence is admissible pursuant to rule 351 of the Federal Courts Rules,
SOR/98-106, in “special circumstances”. This is a limited exception to the
general principle that the function of an appellate court is to determine
whether the decision of the court below is erroneous, based on the materials
that were before it. In determining whether “special circumstances” exist, the
Court must consider whether the fresh evidence was discoverable with reasonable
diligence before the end of the trial, is credible, and is practically
conclusive of the appeal. Evidence which does not satisfy these three tests may
still be admitted “if the interests of justice require it.” See Humanist
Assn. of Toronto v. Canada, 2002 FCA 322 at para. 4.
Reasonable diligence
[9]
Since Professor
Martin’s affidavit provides evidence of events occurring after the hearing of
the application of judicial review, it is not evidence that could have been
“discovered” in time to put before the Judge.
[10]
However,
it is relevant to consider whether the affidavit could reasonably have been brought
to the attention of this Court earlier: Justice Phelan’s reasons were issued on
November 29, 2007, notice of the present motion was given on April 11, 2008,
and the appeal is to be heard on May 21, 2008. As I have noted, the
publications in the Federal Register attached as Exhibits A and B to the
affidavit appeared more than a year ago. The legislative amendments (Exhibit C)
are dated December 2007, and a synopsis by Human Rights First of the changes to
the terrorism exclusion provisions is dated January 29, 2008 (Exhibit D).
[11]
In my
opinion, this evidence, especially the Federal Register publications, could
reasonably have been adduced earlier than in April 2008, just over a month
before the appeal is to be heard.
Credibility
[12]
The
affidavit and the exhibits appear credible, in the sense that they prove the
policy and legislative changes with which they are concerned. However, as
explained below, this evidence is incomplete.
Practically conclusive of the appeal
[13]
Although
the appellant takes the position in her memorandum of fact and law filed to
support the appeal that Phelan J. could not conduct the factual assessment that
was embarked upon, the motion appears to be brought in support of the
appellant’s contention that, in any event, compliance with Article 33 of the
Refugee Convention was in fact demonstrated. I am not persuaded that the
affidavit and the attached exhibits are “practically conclusive” of this aspect
of the appeal. First, the terrorist exclusion and waiver provisions comprised only
one of four issues which Justice Phelan found undermined the reasonableness of
the Governor in Council’s conclusion that the United States was in compliance with Article 33 of the
Refugee Convention. In addition, Justice Phelan found that it was unreasonable
for the Governor in Council to have concluded that the United States complied
with Article 3 of the Convention against Torture, and that the Governor
in Council had failed to keep under review the Agreement and the conditions for
refugee claimants in the United States, as required by subsection 102(3) of IRPA.
[14]
I
appreciate that Justice Phelan noted that the issues in dispute, including the
terrorist exclusion issue, “which individually and more importantly collectively”
[emphasis added], undermined the reasonableness of the Governor in Council’s
conclusion. However, he also held the Regulations to be invalid on unrelated
grounds, namely an unreasonable conclusion by the Governor in Council that the United States complies with Article 3 of
the Convention against Torture and the Governor in Council’s failure to
perform the review required by subsection 102(3) of IRPA.
[15]
The
respondents further submit that policy or statutory changes are only a part of
the picture, because subsection 102(2) of IRPA also requires
consideration of a designated state’s practices concerning refugee
protection. Professor Martin does not address the on-the-ground effects of the
changes he describes.
[16]
In view of
the above considerations, I am not persuaded that the fresh evidence is
“practically conclusive” of the appeal
The interests of justice
[17]
The
respondents submit that it would be unfair to admit this affidavit and its
exhibits without also permitting them to: adduce evidence on the extent to
which the legislative and policy changes on the grant of waivers from the
terrorism exclusion rule have been implemented in practice; cross-examine
Professor Martin; and introduce fresh evidence on other relevant developments
in the United States’ refugee protection system. This Court could then be put
in the inappropriate position of fact-finder. To admit the fresh evidence may
well require an adjournment of the hearing of the appeal.
[18]
The
interests of justice would not be served by further complicating an already
complex record, nor by delaying the disposition of this important matter,
especially since a stay has been granted of Justice Phelan’s order pending the
disposition of the appeal.
[19]
For all
these reasons, the motion will be dismissed.
“John
M. Evans”
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