Date:
20080627
Docket: A-37-08
Citation: 2008 FCA 229
CORAM: RICHARD
C.J.
NOËL
J.A.
EVANS
J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUNCIL OF CHURCHES,
AMNESTY INTERNATIONAL and
JOHN DOE
Respondents
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an
appeal from a decision of Phelan J. (the “Applications judge”), granting an
application for judicial review by the Canadian Council of Refugees, the
Canadian Council of Churches, Amnesty International and John Doe (the “respondents”),
declaring invalid sections 159.1 to 159.7 of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (the “Regulations”), and 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 (otherwise known as the “Safe Third Country
Agreement”).
[2]
In
particular the Applications judge found that compliance with Article 33 of the 1951
Convention Relating to the Status of Refugees, (July 28, 1951), 189 U.N.T.S.
137 (entered into force April 22, 1954) (the “Refugee Convention”)
and Article 3 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, (December 10, 1984), 1465 U.N.T.S. 85
(entered into force June 26, 1987) (the “Convention against Torture”,
together the “Conventions”), was a condition precedent to the Governor-in-Council’s
(the “GIC”) exercise of its delegated authority under section 102 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”) to designate the United
States of America (the “U.S.”) as a safe third country and that, on the
evidence before him, the U.S. did not comply with either. Accordingly, he held
that the Safe Third Country Agreement and the implementing provisions of the
Regulations were ultra
vires the enabling legislation, section 102 of the IRPA; violated sections
7 and 15 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 (the “Charter”) and were not saved by section 1 of the Charter.
[3]
On appeal,
Her Majesty the Queen (the “appellant”) argues that the Applications judge
erred in law by reviewing the Regulations as an administrative decision and
that he erred in fact and in law in concluding that there was a real risk of refoulement
where a refugee is returned to the U.S.
Further, the appellant argues that the Applications judge erred in law in
concluding that the Regulations violate the Charter.
RELEVANT FACTS
Background
[4]
The Regulations at issue implement into domestic law a Safe Third Country
Agreement between the Canada and the U.S. whereby if a
refugee enters Canada from the U.S. at a land border point of entry, Canada will, subject to
specified exceptions, send the refugee back to the U.S. The same
applies for refugees crossing by land from Canada into the
U.S.
[5]
A “safe third country” clause first appeared in Canadian law in the 1988
amendments to the Immigration Act, 1976, R.S. 1976-77, c. 52, as amended
by S.C. 1988, c. 35 and c. 36 (the “Immigration Act”). The provision
allowed for the designation of another country as a “safe third country” such
that refugee claimants seeking to enter Canada via such a country would not be
permitted to claim protection in Canada.
[6]
In 1989, the Canadian Council of Churches challenged the
constitutionality of this clause, among others, however, the Federal Court of Appeal in Canadian Council of Churches v.
Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 224 (F.C.A.) (QL)) held that the challenge was premature as
no country had yet been designated under the clause. The Supreme
Court of Canada in Canadian Council of Churches v. Canada
(Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at 253 (Canadian Council of Churches) also disallowed the
challenge, however, on the ground that the Canadian Council of Churches lacked
standing to bring the challenge as there was a more reasonable and effective
way to bring it, i.e., by a refugee.
[7]
Through the 1990s, the Government of Canada continued to negotiate with
the U.S. regarding a Safe Third Country Agreement. On December
12, 2001, the U.S.-Canada Smart Border Declaration was issued, setting out a 30
Point Action Plan that included a new commitment to negotiate an agreement.
[8]
On June 28, 2002, the IRPA came into effect and as part of the IRPA, Parliament granted
the GIC authority to designate a country as “safe” that, based on its laws,
practices and human rights record, complies with Article 33 of the Refugee
Convention and Article 3 of the Convention against Torture. These
provide:
Refugee Convention, Article
33
Prohibition of expulsion or
return ("refoulement")
1. No Contracting State shall expel or
return ("refouler") a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social
group or political opinion.
2. The benefit of the present
provision may not, however, be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.
|
Convention
et protocole relatifs au statut des réfugiers, Article 33
Défense
d’expulsion et de refoulement
1.
Aucun des Etats Contractants n’expulsera ou ne refoulera, de quelque
manière
que ce soit, un réfugié sur les frontières des territoires où sa vie ou
sa
liberté serait menacée en raison de sa race, de sa religion, de sa
nationalité,
de son
appartenance à un certain groupe social ou de ses opinions politiques.
2. Le
bénéfice de la présente disposition ne pourra toutefois être invoqué par
un
réfugié qu’il y aura des raisons sérieuses de considérer comme un danger
pour
la sécurité du pays où il se trouve ou qui, ayant été l’objet d’une
condamnation
définitive
pour un crime ou délit particulièrement grave, constitue une
menace
pour la communauté dudit pays.
|
Convention against Torture
Article 3
1. No State Party shall
expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger
of being subjected to torture.
2. For the purpose of determining
whether there are such grounds, the competent authorities shall take into
account all relevant considerations including, where applicable, the
existence in the State concerned of a consistent pattern of gross, flagrant
or mass violations of human rights.
|
Convention
contre la torture
Article 3
1. Aucun Etat partie n'expulsera, ne refoulera, ni
n'extradera une personne vers un autre Etat où il y a des motifs sérieux de
croire qu'elle risque d'être soumise à la torture.
2. Pour déterminer s'il y a de tels motifs, les autorités
compétentes tiendront compte de toutes les considérations pertinentes, y
compris, le cas échéant, de l'existence, dans l'Etat intéressé, d'un ensemble
de violations systématiques des droits de l'homme, graves, flagrantes ou
massives.
|
[9]
Section
5 of the IRPA requires that a certain class of regulations involving matters of
public interest be laid before the House of Parliament prior to promulgation.
The Regulations in issue in the present proceeding come within that class and were
placed before the House prior to promulgation.
[10]
Further,
the GIC’s authority to enter into a Safe Third Country Agreement is found at
sections 101 and 102 of the IRPA:
101. (1) A claim is ineligible to be referred to
the Refugee Protection Division if
[...]
(e) the claimant
came directly or indirectly to Canada from a country designated by the regulations, other than
a country of their nationality or their former habitual residence
|
101. (1) La demande
est irrecevable dans les cas suivants :
[...]
e) arrivée,
directement ou indirectement, d'un pays désigné par règlement autre
que celui dont il a la nationalité ou dans lequel il avait sa résidence
habituelle
|
102. (1) The regulations may govern matters
relating to the application of sections 100 and 101, may, for the purposes of
this Act, define the terms used in those sections and, for the purpose of
sharing responsibility with governments of foreign states for the
consideration of refugee claims, may include provisions
(a) designating
countries that comply with Article 33 of the Refugee Convention and
Article 3 of the Convention Against Torture;
(b) making a list
of those countries and amending it as necessary; and
(c) respecting the
circumstances and criteria for the application of paragraph 101(1)(e).
(2) The following factors are to be
considered in designating a country under paragraph (1)(a):
(a) whether the
country is a party to the Refugee Convention and to the Convention Against
Torture;
(b) its policies
and practices with respect to claims under the Refugee Convention and with
respect to obligations under the Convention Against Torture;
(c) its human
rights record; and
(d) 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.
(3) The Governor in Council must
ensure the continuing review of factors set out in subsection (2) with
respect to each designated country.
|
102. (1) Les
règlements régissent l'application des articles 100 et 101, définissent, pour
l'application de la présente loi, les termes qui y sont employés et, en
vue du partage avec d'autres pays de la responsabilité de l'examen des
demandes d'asile, prévoient notamment :
a) la
désignation des pays qui se conforment à l'article 33 de la Convention sur
les réfugiés et à l'article 3 de la Convention contre la torture;
b)
l'établissement de la liste de ces pays, laquelle est renouvelée en tant que
de besoin;
c) les cas et les
critères d'application de l'alinéa 101(1)e).
(2) Il est tenu compte des facteurs
suivants en vue de la désignation des pays :
a) le fait que
ces pays sont parties à la Convention sur les réfugiés et à la Convention
contre la torture;
b) leurs
politique et usages en ce qui touche la revendication du statut de réfugié au
sens de la Convention sur les réfugiés et les obligations découlant de la
Convention contre la torture;
c) leurs
antécédents en matière de respect des droits de la personne;
d) le fait
qu'ils sont ou non parties à un accord avec le Canada concernant le partage
de la responsabilité de l'examen des demandes d'asile.
(3) Le gouverneur en conseil assure
le suivi de l’examen des facteurs à l’égard de chacun des pays désignés.
|
[My emphasis]
[11]
The final text of the Safe Third Country Agreement with the U.S. was
signed on December 5, 2002. The GIC formally designated the U.S. two
years later, on October 12, 2004, by promulgating section 159.3 of the
Regulations, which came into force December 29, 2004:
159.3 The
United States is designated under paragraph 102(1)(a) of the Act as a
country that complies with Article 33 of the Refugee Convention and Article 3
of the Convention Against Torture, and is a designated country for the purpose
of the application of paragraph 101(1)(e) of the Act.
|
159.3 Les États-Unis sont un pays désigné au
titre de l’alinéa 102(1)a) de la Loi à titre de pays qui se conforme à
l’article 33 de la Convention sur les réfugiés et à l’article 3 de la
Convention contre la torture et sont un pays désigné pour l’application de
l’alinéa 101(1)e) de la Loi.
|
[12]
Also promulgated on the same occasion were sections 159.1 to 159.7 of the Regulations,
(these are reproduced as Appendix I to these Reasons) according to which
refugee claimants who request protection at the U.S.-Canada border by land are
denied access to the refugee determination process in Canada unless they meet
one of the enumerated exceptions in the Regulations (section 159.5):
·
family member of Canadian citizens,
·
permanent residents and protected persons,
·
unaccompanied minors,
·
holders of Canadian travel documents,
·
persons who do not need visas to enter Canada but need visas to enter the U.S.,
·
persons who were refused entry to the U.S. without having
their claim adjudicated or permanent residents of Canada being removed from the U.S.,
·
persons who are subject to the death penalty and
·
persons who are nationals of countries to which the
relevant Minister has imposed a stay on removal orders.
[13]
Throughout the negotiations leading to the execution of the Safe Third
Country Agreement and its implementation by the promulgation of the
Regulations, the United Nations High Commissioner of Refugees (the “UNHCR”)
monitored the process in order to ensure that persons seeking protection from
persecution would have access to a full and fair procedure to assess their
claims (see Scoffield Affidavit, Appeal Book, Vol. 11, Tab 33, Exhibit B4, p. 3126;
Scoffield Affidavit, Appeal Book, Vol. 11, Tab 33, Exhibit B5, p. 3135). Its
monitoring role was formally recognized in Article 8(3) of the Safe Third
Country Agreement, and extends to the ongoing review of the operation of the
Agreement.
Leave and Judicial
Review Application
[14]
On December 29, 2005, the respondents launched an application for leave
and judicial review seeking a declaration that the designation of the U.S.
under section 102 of the IRPA was ultra vires, that the GIC erred in
concluding that the U.S. complied with Article 33 of the Refugee Convention
and Article 3 of the Convention against Torture and further, that the designation
breached sections 7 and 15 of the Charter. For purposes of clarity, it
is useful to set out in full the issues set out in the judicial review
application filed before the Court:
(1) The designation, under Paragraph 159.3 of the Regulations
Amending the Immigration and Refugee Protection Regulations and Sections
5(1) and 102 of the Immigration and Refugee Protection Act, of the
United States of America as a country that complies with Article 33 of the 1951
Convention relating to the Status of Refugees and Article 3 of the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
is an error of fact and law.
(2) The designation, under Paragraph 159.3 of the Regulations
Amending the Immigration and Refugee Protection Regulations and Sections
5(1) and 102 of the Immigration and Refugee Protection Act, of the
United States of America, and the resulting application of the ineligibility
provision under Section 101(1)(e) to such persons who do not meet one of
the exceptions specified under Paragraphs 159.4, 159.5 or 159.6 of the Regulations:
a. is patently unreasonable and is an error of fact and
law;
b.
is contrary to the obligation set out in Section 3(3)(f)
of the Immigration and Refugee Protection Act to apply the legislation
in a manner that complies with international human rights instruments to which
Canada is a signatory, and is therefore ultra vires the
Governor-in-Council;
c.
is in breach of the rights to life, liberty, and/or
security of the person of those subject to it and is not in accordance with the
principles of fundamental justice, contrary to Section 7 of the Charter, and is
not justified under Section 1 of the Charter; and
d.
is in breach of the rights to equality before and under
the law and to equal protection and benefit of the law without discrimination,
contrary to Section 15 of the Charter, and is not justified under Section 1 of
the Charter.
[15]
The remedies sought were a declaration that the designation of the U.S.
is ultra vires the GIC and in breach of sections 7 and 15 of the Charter;
that the delegation of authority to determine eligibility under paragraph
101(1)(e) of the IRPA to officers at ports of entry, and the failure to
provide access to counsel during such eligibility determinations are contrary
to the principles of natural justice and are in breach of section 7 of the –
the second aspect of this remedy (access to counsel) was denied by the Applications
judge (Reasons, paras. 288 and 289) and is no longer in issue – and any other
relief as the applicants may advise and that the Court may permit (Appeal Book,
Application for Leave and for Judicial Review, Vol. 1, p. 133).
[16]
Leave to proceed with the application was granted on June 29, 2006.
[17]
In the Supplementary Memorandum of Fact and Law, which the respondents
filed in support of their judicial review application, after leave was granted,
they also argued that the GIC had, since the time of promulgation, breached its
obligation to ensure a continuing review pursuant to subsection 102(3) of the
IRPA (Respondents’ Supplementary Memorandum of Fact and Law, Appeal Book, Vol. 1,
p. 200, paras. 89 to 97).
Standing
[18]
The respondent organizations argued for public interest standing as
organizations that advocate for refugee rights. In the context of this
generalized attack on the Regulations, the involvement of John Doe, whose
identity is protected by a confidentiality order, becomes relevant. John Doe is
a U.S. refugee claimant who was denied refugee status in the U.S. and
claimed that he would have sought asylum in Canada but for
the Regulations (John Doe Affidavit, Appeal Book, Vol. 2, p. 390, para. 25).
[19]
John Doe was initially denied refugee status in the U.S. after arriving
with his wife from Colombia on June 18, 2000 on a tourist visa. Approximately 14
months later, on August 9, 2001, the U.S. commenced removal
proceedings against John Doe and his wife. On December 14, 2001, John Doe
submitted an application for asylum and, in the alternative, a withholding of
removal based on a fear of persecution. His application was denied as a result
of having failed to apply for refugee status within one year of arriving in the
U.S and his application for withholding removal was refused because he failed
to establish his claim on the standard of “a clear probability of persecution”
required for withholding to be granted (John Doe Affidavit, Appeal Book, Vol. 2,
p. 389, paras. 23 and 24). He did not appeal this decision and continued
to live illegally in the U.S. He never approached the Canadian border as he had been
informed (from an unknown source) that he was ineligible to make a claim in Canada (John
Doe Affidavit, Appeal Book, Vol. 2, p. 390, para. 25).
[20]
During the course of the proceedings before the Federal Court, counsel
for the respondent organizations also represented John Doe as he had no
independent counsel. On February 1, 2007, John Doe was arrested by U.S.
authorities and faced imminent deportation. The respondents filed a motion for
an injunction before the Federal Court to compel the appellant “to allow John
Doe and his wife to enter Canada” pending the disposition of the judicial
review application which they had brought, or in the alternative, an order “restraining
the [appellant] from denying him and his wife entry to Canada” (Appeal Book,
Vol. 15, p. 4588). Accompanying this motion were renewed allegations of threats
by the Revolutionary Armed Forces of Colombia (the “FARCs”) directed against
John Doe.
[21]
On February 7, 2007, the Applications judge issued a conditional order
providing that if John Doe were to arrive at a Canadian port of entry, he was
not to be removed by Canadian authorities (Appeal Book, Vol. 15, p. 4586). The Applications
judge declined to provide any other relief until John Doe had exhausted all his
remedies before the U.S. Courts (Appeal Book, Vol. 15, p. 4588). In the
meantime, the U.S. Board of Immigration Appeals reopened John Doe’s claim and
remanded it to an Immigration Judge for reconsideration and John Doe was eventually
released from custody. Consequently, Phelan J. dismissed the remaining aspects
of the respondents’ motion which he had kept in abeyance (Appeal Book, Vol. 15,
p. 4610).
The
evidence
[22]
In support of their application for judicial review, the respondents filed
a series of affidavits from U.S. academics and practitioners (Reasons, para. 106),
covering various aspects of U.S. asylum law and policy until the filing of the
application. These affidavits attempt to establish the current state of U.S.
asylum law and policy and generally allege an erosion of U.S.
institutions, laws and practices including an expansion of exclusions from
protection, the use of detention, restrictions on appeals and codification of
questionable asylum laws. In particular, the affidavit evidence was adduced by
the respondents to demonstrate:
That persons who fail to make a claim within one year of their arrival
in the U.S. are improperly barred from consideration for asylum contrary to the
Refugee Convention and although a claimant would still be eligible for a
withholding removal, the U.S. law imposes a higher risk standard in relation to
withholding removals, being – more likely than not (Supplementary Memorandum, Appeal
Book, Vol. 1, p. 200 at paras. 48-55);
The U.S. exclusion from
consideration for asylum or withholding of removal of serious criminals, those
who are a danger to security or terrorists goes further than what is permitted
by the Conventions (idem at paras. 56, 57);
That the U.S.
interprets too narrowly certain of the criteria under the Convention for
granting protection. In particular, they contend that the U.S. fails to interpret the definition of refugee and that
the U.S. errs in the risk standard
for torture (idem at paras. 67-73);
That the U.S. practices impeded the successful advancement of a
protection claim, more particularly by the detention of persons who are without
valid status in the U.S. and those who arrive without proper documents (expedited
removal) as well as by the failure to provide state-funded legal representation
at all stages of the refugee determination process (idem at para. 74 and
Martin Affidavit, Appeal Book, Vol. V, p. 1210 at paras. 37, 38 and 191).
[23]
The appellant also adduced expert affidavit evidence (Reasons, para.
106) covering the history and development of the safe third country concept in
the European Union (the “E.U.”) member states, including the United Kingdom
(the “U.K.”), information on the background, negotiations and terms of the Safe
Third Country Agreement, the process leading to the designation of the U.S. as
a safe third country and the adoption of implementing Regulations, the
compatibility of responsibility sharing agreements with the Refugee and Torture
Convention, a description of the U.S. refugee determination system and
analysis of the specific areas of U.S. refugee laws and practices and human
rights record attacked by the respondents, comparisons of the U.S. approach
with the various approaches taken in the E.U., U.K., Canada in the specific
areas impugned by the respondents and the implementation of the Safe Third
Country Agreement at the Canada-U.S. border.
[24]
In addition, on cross-examination of Bruce Scoffield, lead Citizenship
and Immigration Canada official in the negotiation of the Safe Third Country Agreement
with the U.S., the appellant provided a copy of the “advice” that Cabinet had
received regarding U.S. compliance with the factors set out in subsection 102(2)
of the IRPA, dated September 24, 2002.
[25]
The parties confirmed that the witnesses adduced their evidence by way
of sworn statements and that all cross-examinations thereon took place outside
the presence of the Applications judge.
The
outcome
[26]
In a lengthy decision comprising 340 paragraphs, the Applications judge
allowed the application for judicial review, declaring that: the Safe Third
Country Agreement and sections 159.1 to 159.7 of the Regulations were ultra
vires; the GIC acted unreasonably in concluding that the U.S. was compliant
with its Convention obligations; the GIC had failed to ensure continuing review
of the designation of the U.S. as a safe third country as required by subsection
102(2) of the IRPA; and sections 159.1 to 159.7 of the Regulations violated
sections 7 and 15 of the Charter.
[27]
The formal judgment delivered on January 17, 2008 certifies the
following three questions for consideration by this Court:
1) 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?
2) 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?
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?
[28]
Although also asked
to certify a question about whether the respondents had the standing to bring
forth the application for the judicial review, the Applications judge declined
to do so (Appeal Book, Vol. 15, p. 4616).
[29]
The present appeal ensued and by order dated January 31, 2008, the Chief
Justice stayed the operation of the Judgment until the present pronouncement.
FEDERAL COURT DECISION
[30]
The Applications judge first determined that the three respondent
organizations had the standing to bring the judicial review application. In
particular, he held that they had successfully established the third prong of
the standing test i.e, the absence of any other reasonable and effective manner
to have this matter brought before a court. The Applications judge noted that
no refugee from within Canada, seeking entry, can bring the claim. Only a refugee from
outside Canada, an already vulnerable individual, could bring the
challenge (Reasons, paras. 43, 44 and 45). The Applications judge distinguished
the decision of the Supreme Court in Canadian Council of Churches, supra
on that basis (Reasons, para. 40). He went on to conclude that even without
John Doe, these organizations bear recognition as legitimate applicants
(Reasons, para. 51).
[31]
In addressing John Doe’s standing, the Applications judge reasoned that
it is of no import that John Doe never approached the Canadian border as such a
requirement would be wasteful, delaying and unfair (Reasons, para. 47). While
the Applications judge acknowledged that the U.S. agreed
to reconsider John Doe’s claim, he did not accept that this was done in good
faith. According to the Applications judge, this development can only be
explained by the litigation undertaken before him (Reasons, para. 53). The Applications
judge therefore reasoned that even though John Doe never showed up, he was to
be considered as having presented himself at the border and as having been
denied entry.
[32]
The Applications
judge begins his substantive analysis by referring to the promulgation on
October 12, 2004 of section 159.3 of the Regulations designating the U.S. as a country that complies with Article
33 of the Refugee Convention and Article 3 of the Convention against
Torture (Reasons, para. 26). He describes “this designation” as “the
central point of contention in this judicial review” (idem).
[33]
He later
repeats (Reasons, para. 55) that the central issue is whether section 159.3 is ultra
vires the power given by Parliament to make such Regulation (hereinafter, “the
vires issue”). That in turns depends on whether the conditions precedent
for the exercise of the delegated authority by the GIC were present when the
designation was made.
[34]
The Applications
judge then begins exploring these conditions. He acknowledges that subsection
102(2) of IRPA sets out several factors which must be considered before
designating a country and that the GIC considered these factors before
designating the U.S. as a “safe third country” (Reasons, para. 78):
… The wording of the [Regulatory Impact and Analysis Statement] establishes that the GIC considered the application of the four factors.
Furthermore, the [Respondents] set out in detail the content of a memorandum to
the GIC created on September 24, 2002, and signed by the relevant Minister at
the time. This memorandum appears to be the basis upon which the GIC entered
into the STCA. In reviewing the points the [Respondents] extract from that
memorandum, it is clear that the GIC, in reading and reviewing the Minister’s
memorandum would have turned their mind to the four factors in the legislation,
including the U.S. human rights
record in general.
[35]
However,
beyond the conditions set out in subsection 102(2) of the IRPA, the Applications
judge holds that the main condition is paragraph 102(1)(a) of the IRPA, which
provides that the GIC is authorized to promulgate regulations “designating
countries that comply with Article 33 of the Refugee Convention
and Article 3 of the Convention against Torture” (Reasons, para. 79).
According to the Applications judge compliance with the Conventions is a
condition precedent to the exercise by the GIC of its delegated authority (idem).
Although, the issue whether the U.S.
complies is, to some extent, a matter of opinion (Reasons, para. 80), the
question to be decided is objective “compliance or not” (Reasons, para. 83).
[36]
The Applications
judge then addresses the standard of review. Later in his reasons he
acknowledges that determining whether the conditions precedent to the exercise
of the delegated authority are present is a simple matter that stands to be
reviewed on a standard of correctness (Reasons, para. 75). However, the respondents
also take issue with the “decision” of the GIC which led to the designation “an
argument involving the standard of review and its application.” (Reasons, para.
54). After conducting a pragmatic and functional analysis (Reasons, paras. 88
to 105), the Applications judge holds that the applicable standard of review is
reasonableness simpliciter (as it was then known).
[37]
He then
embarks on an extensive analysis to determine both whether the designation was ultra
vires, and whether the GIC had failed to perform its statutory duty to
review the designation thereafter as contemplated by subsection 102(2) of the IRPA.
The Applications judge does not explain how this second issue came to be part
of the judicial review application.
[38]
With
respect to the extensive expert evidence filed by the parties (he highlights six
affidavits filed on behalf of the respondents and three on behalf of the
appellant) expressing contradictory opinion on the issue whether the U.S. was
compliant with the relevant Articles of the Conventions, the Applications judge
rules in two swift paragraphs that the respondents’ evidence is to be preferred
whenever there is a conflict in views (Reasons, paras. 108 and 109):
[108] I find the [respondents’]
experts to be more credible, both in terms of their expertise and the
sufficiency, directness and logic of their reports and their cross-examination
thereon. I also recognized and have given the appropriate weight to the fact
that some of the [respondents’] experts could be said to speak for or have
“constituencies” which means that their evidence may lean in a direction more
favourably to the constituency. The same can be said for the [appellant’s] experts
who testify in support of either a process in which they have been engaged from
the beginning or in support of a system they have worked in. Taking account of
these subjective factors, I find the [respondents’] experts to be more
objective and dispassionate in their analysis and report.
[109] Therefore, I have
been persuaded that, where in conflict, the [respondents’] evidence is to be
preferred.
[39]
The Applications
judge then proceeds to review what he describes as “legal facts” to ascertain
whether the U.S. protects refugees from refoulement.
He notes that the issue is whether the U.S. offers “actual” protection (Reasons,
para. 137). The Applications judge collapses into one his analysis of whether
the designation was validly made and whether the GIC had subsequently failed to
conduct an ongoing review as required by subsection 102(3) of the IRPA. He
indiscriminately reviews evidence which precedes and follows the effective date
of the designation before concluding both that the designation was ultra
vires and that the GIC had thereafter failed to conduct the ongoing review
as required by subsection 102(3) of IRPA (Reasons, para. 240). The formal judgment
gives effect to both of these conclusions. [Although this is not said anywhere
in the formal judgment or the reasons, both conclusions cannot stand at once.
If the designation of the U.S. was ultra vires as was
found, the GIC could not have breached its ongoing obligation to review it.]
[40]
In
addressing the Charter challenge, the Applications judge first determines
that the applicable standard of review for determining whether the designation
of the U.S. as a safe third country
violates the Charter is correctness (Reasons, para. 276). According to the Applications
judge, if Canadian officials return a refugee claimant to the U.S., pursuant to the Safe Third Country
Agreement, this action must be in compliance with the Charter (Reasons,
para. 281; relying on Singh v. Canada (Minister of Citizenship and
Immigration), [1985] 1 S.C.R. 177 and United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283). He then
proceeds to address the Charter challenge based on his earlier finding that the
U.S. is not compliant with the
Conventions.
[41]
According
to the Applications judge, a refugee’s right to life, liberty and security is clearly
put at risk when he or she is returned to the U.S. under the Safe Third Country
Agreement, if the U.S. does not comply with the Conventions
(Reasons, para. 285). In considering whether the deprivation of a person’s
right to life, liberty and security is nevertheless in accordance with the
fundamental principles of justice, he finds that the lack of discretion for a
Canadian immigration officer to allow a claimant to remain in Canada after
determining that the claimant does not fall within the enumerated exceptions to
the Safe Third Country Agreement, violates the principles of fundamental
justice (Reasons, paras. 304 and 307).
[42]
While
recognizing that his conclusion is based on his findings under the vires
analysis that the U.S. is not a safe country, the Applications
judge suggests that the Regulations may violate the Charter even if the U.S. was a safe country (Reasons, paras. 311
and 312).
[43]
Turning to the section 15 Charter challenge, the Applications judge finds,
following an
examination of the relevant factors (Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497
at paragraph 51),
that there is discrimination. According to the Applications judge, women and
Colombian nationals have suffered a pre-existing disadvantage and the use of
limited exceptions to the Safe Third Country Agreement does not address the
specific needs of these individuals (Reasons, paras. 325 to 333). Furthermore,
this unequal treatment cannot be justified under section 1 of
the Charter (Reasons, paras. 335 and 336).
POSITION OF THE PARTIES
[44]
Dealing with the vires
issue, the appellant contends that the Applications judge erred by reviewing
the promulgation of section 159.3 of the Regulations, which designates the U.S. as a safe third country, as if it was an administrative decision
to be assessed on a standard of reasonableness. According to the appellant the
matter before the Applications judge was a pure vires issue, and his
only task was to verify whether the conditions precedent for the exercise of
the delegated authority were present at the time of the promulgation.
[45]
The appellant contends
that the Applications judge erred in finding that compliance with the relevant
Articles of the Conventions in an absolutist sense is a condition precedent to
the exercise of the delegated authority. Paragraph 102(1)(a) of the IRPA
sets out the statutory objective which is to designate countries that comply
with the Conventions and the means of ascertaining compliance are set out in
subsection 102(2) of the IRPA. By finding that “compliance” in an absolutist
sense is a condition precedent, the Applications judge second guessed the
promulgation of the designation. As such he usurped the authority which
Parliament had expressly delegated to the GIC.
[46]
In the alternative,
the evidence establishes that the U.S. complies with the relevant Articles of
the Convention. The conclusion reached by the Applications judge that the U.S.
is not compliant is based on a “perverse” approach to the evidence as revealed
by his one sided assessment of the expert evidence, and his failure to confront
the position of the UNHCR that the U.S. like Canada, is a “safe” country
(Scoffield Affidavit, Appeal Book, Vol. 11, Tab 33, Exhibit B-10, p. 3247).
[47]
Finally, with respect
to the Charter violations found to have taken place, the appellant argues that Charter
litigation does not involve administrative law standards of judicial review.
Rather, a person alleging Charter violations has the burden of demonstrating
infringement on a balance of probabilities. The appellant submits that the Applications
judge ignored these fundamental principles and erred in undertaking a Charter
analysis in the context of a purely hypothetical situation.
[48]
The respondents, for
their part, contend that the Applications judge came to the correct conclusion
for the reasons that he gave with respect to all the issues that he was called
upon to decide. They further submit that it would be “absurd” to construe the
relevant provisions of IRPA as allowing the GIC to designate a country that
does not “actually” comply with the relevant Articles of the Conventions.
[49]
The respondents add that
this appeal is an attempt to re-litigate factual issues. The findings made by
the Applications judge on the U.S. protection system and human rights
record cannot be reviewed in the absence of a palpable or overriding error,
none of which has been established.
[50]
At the hearing of the
appeal, Counsel for the respondents indicated that, rather than striking down
sections 159.1 to 159.7 of the Regulations, the Applications judge could have
limited his Charter remedy to a declaration that the Regulations were in breach
of the Charter only to the extent that they fail to give border officers the
discretion to allow a refugee claimant to remain in Canada on grounds other
than those enumerated in section 159.5 of the Regulations (see para. 12 above).
According to counsel, this absence of discretion is what creates a real risk of
refoulement for a class of refugees, contrary to section 7 of the Charter.
ANALYSIS
AND DECISION
First
certified question: standard of review
[51]
The first
question certified by the Applications judge deals with the vires issue
and seeks to identify the appropriate standard of review in respect of the
GIC’s “decision” to designate the U.S.
as a safe third country. In this respect, a preliminary issue arises as to
whether the promulgation of the designation is a “decision” subject to judicial
review pursuant to section 18 of the Federal Courts Act, R.S.
1985, c. F-7, (the “Federal Courts Act”).
[52]
When
served with the application for judicial review, the GIC had the obligation pursuant
to the
Federal Courts Rules, S.O.R./98-106 to forward to the Federal Court
Registry the reasons for the
“decision” to promulgate the designation. The position taken by the GIC in this
regard is set out in a letter forwarded to the Registry on February 4, 2006,
the body of which reads:
This is in
response to a request pursuant to Rule 9 of the Federal Court Immigration
and Refugee Protection Rules, 1993.
While there
is no decision as such in this case, the Regulations Amending the
Immigration and Refugee Protection Regulations, S.O.R./2004-217, constitute
the decision and reasons.
Pursuant to
Rule 9(2)(a) of the Federal Court Immigration and Refugee Protection
Rules, 1993, I certify the enclosed two copies as correct copies of the
original.
[53]
This response
with which the respondents do not take issue (Notice of Application, Appeal
Book, Vol. I, pp. 133 to 135) conforms with the generally accepted view that
the “decision” of the GIC to promulgate regulations, just like the “decision” by
members of Parliament to enact legislation, is not subject to review by the
courts (as to the later, note subsection 2(2) of the Federal Courts Act (originally
introduced by S.C. 1990, c.8, s.1) which provides that “For greater certainty”,
the House of Commons is not a Federal Board and therefore not subject to
judicial review). That said, the legality or vires of a regulation
promulgated under the authority of Parliament has always been open to challenge
before the courts and to that extent, the actions of the GIC are subject to
judicial review. This distinction between what can be reviewed and what falls
outside the purview of the courts is highlighted by the Supreme Court in Thorne’s
Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106, at page 111:
The mere fact that a statutory power is vested in the Governor in Council
does not mean that it is beyond judicial review: Attorney General of Canada
v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 748.
I have no doubt as to the right of the courts to act in the event that
statutorily prescribed conditions have not been met and where there is
therefore fatal jurisdictional defect. Law and jurisdiction are within the
ambit of judicial control and the courts are entitled to see that statutory
procedures have been properly complied with: R. v. National Fish Co., [1931] Ex. C.R. 75;
Minister of Health v. The King (on the Prosecution of Yaffe), [1931] A.C.
494 at p. 533. Decisions made by the Governor in Council in matters of
public convenience and general policy are final and not reviewable in legal
proceedings. Although, as I have indicated, the possibility of striking down an
order in council on jurisdictional or other compelling grounds remains open, it
would take an egregious case to warrant such action. This is not such a case.
[54]
The dividing
line was succinctly identified by Strayer J.A. in Jafari v. Canada (Minister of Employment and
Immigration),
[1995] 2 F.C. 595 at page 602:
It goes
without saying that it is not for a court to determine the wisdom of delegated
legislation or to assess its validity on the basis of the court's policy
preferences. The essential question for the court always is: does the statutory
grant of authority permit this particular delegated legislation? [Footnote
omitted]
[55]
Until 1990,
the procedure for attacking the vires of a regulation promulgated under
the authority of Parliament was by way of declaratory action initiated by way
of a statement of claim (David Sgayias et al., Federal Court Practice, 1991-92
(Scarborough: Thomson Professional Publishing Canada, 1991) at p. 89). Since
then (see the amendment to the Federal Court Act brought by S.C. 1990,
c. 8, s. 4), the procedure for controlling the legality of subordinate
legislation has been streamlined, and judicial review under section 18 of the Federal
Courts Act (as renamed in 2002) became the means of controlling decisions
of administrative bodies as well as the vires of subordinate legislation
(Saskatchewan Wheat Pool v. Canada (Attorney General), 107 D.L.R. (4th)
190, at paras. 11
to 15).
[56]
This
modification was procedural in nature. An attack on the legality of subordinate
legislation, on the ground that the conditions precedent prescribed by
Parliament were not met at the time of the promulgation, remains what it has
always been; an attack on the impugned regulation per se and not on the
“decision” to promulgate it.
[57]
Understanding
precisely what is in issue in a judicial review application is important when it
comes time to determine the standard of review as well as the scope of the review
that can be conducted by the Court. An attack aimed at the vires of a
regulation involves the narrow question of whether the conditions precedent set
out by Parliament for the exercise of the delegated authority are present at
the time of the promulgation, an issue that invariably calls for a standard of
correctness. As was stated by this Court in Sunshine Village Corp. v. Canada
(Parks), 2004 FCA 166,
[2004] 3 F.C.R. 600 (at para. 10):
… Reviewing whether
subordinate legislation is authorized by its enabling statute does not require
application of the pragmatic and functional approach. Rather, the vires
of subordinate legislation is always to be reviewed on a correctness standard.
See, for analogous circumstances in respect of municipal by-laws, United
Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485,
at paragraph 5.
[58]
The
Supreme Court recently reiterated in Dunsmuir v. New Brunswick, 2008 SCC
9 at paragraph 59, that “true questions of vires”, such as the one here
in issue, always call for a standard of correctness without the need to conduct
a pragmatic and functional analysis.
[59]
In this
case, there was confusion as to whether the issue raised by the application for
judicial review is one of vires or whether the subject matter of the
application is a challenge of the GIC’s “decision” to promulgate the
designation. The confusion appears to have arisen from the manner in which the
respondents presented their case (Reasons, para. 54):
This
judicial review has been argued from two perspectives. The first is an attack
on the legitimacy of the Regulations -- an argument as to “vires”. The
second is an attack on the GIC decision which led to the Regulation -- an
argument involving the standard of review and its application.
The Applications judge in his reasons refers at times to a
review of “the GIC’s determination” (Reasons, para. 88); a review of the
“initial conclusions leading to” the promulgation of the Regulation (Reasons,
para. 105) and his certified question seeks to identify the standard of review
applicable to the GIC’s “decision” to designate the U.S.
[60]
Despite
this language, the matter raised by the application is a pure vires issue
(see the relevant part of the application for judicial review quoted at paragraph
15 above). This is not controversial as counsel for the respondents (Mr.
Waldman) acknowledged that they were out of time to challenge the “decision” to
promulgate the Regulation even if they had wanted to. Nevertheless, the Applications
judge chose to conduct a pragmatic and functional analysis in order to identify
the standard of review. He said (Reasons, para. 88):
Unlike
many cases of review of the ultra vires of a regulation, the parties had
access to some of the material before the GIC in its consideration of the
relevant factors. Therefore, there is a record upon which the Court can apply a
standard of review to the GIC’s determination. …
Applying the framework of analysis developed by the Supreme
Court in Suresh v. Canada (Minister of Citizenship and
Immigration,
2002 SCC 1, [2002] 1 S.C.R. 3 – because “Suresh most closely
approximates the contextual circumstances of this case” (Reasons, para. 92) – the
Applications judge concluded that reasonableness was the appropriate standard
(Reasons, para. 105).
[61]
With respect,
the Applications judge did not need to conduct a pragmatic and functional
analysis and he identified the wrong standard. Having access to part of the
record before the GIC has no impact on the standard since there is in this case
no decision to review. In Suresh, supra, the Supreme Court was
confronted with the judicial review of a decision of an Immigration official to
issue a deportation order. Hence the Supreme Court began its analysis stating (Suresh,
supra, para. 29):
The first
question was what standard should be adopted with respect to the Minister’s
decision that a refugee constitutes a danger to the security of Canada.
[62]
No such
issue arises here again because there is no decision to review.
[63]
The Applications
judge therefore misspoke when he directed his question to the standard of
review applicable to the “decision” of the GIC. In my respectful view, the
first certified question should have been directed at the standard of review
applicable to the review of the vires issue, and the standard applicable
in such a case is correctness.
Second certified question: the vires of
the designation
[64]
The second
certified question should therefore be read as asking whether– applying a
standard of correctness – the impugned Regulations and the Safe Third Country
Agreement are ultra vires the IRPA. This requires the Court to identify
the conditions precedent to the GIC’s exercise of its delegated authority and
determine whether these conditions were satisfied at the time of promulgation.
[65]
If I have
correctly stated the issue to be decided, the Court has before it all the
elements required to address it, and I do not see how I could avoid dealing
with the question certified by the Applications judge on this point. As we have
seen, the respondents have raised vires as a self standing issue and the
Applications judge dealt with it on that basis (Reasons, paras. 61 to 87; 106
to 236 and 241 to 263). Contrary to the Charter challenge (see discussion
below), the question whether the GIC has in this case acted in conformity with
the conditions precedent prescribed by law is neither hypothetical nor
theoretical.
[66]
On a plain
reading of sections 101 and 102 of the IRPA, the conditions precedent for the
exercise of the delegated authority are those set out in subsection 102(2) of
the IRPA. The reasoning of the Applications judge for concluding that beyond
those, the country must “comply” with the relevant Articles of the Conventions
is as follows (Reasons, paras. 78 and 79):
[78]
With respect to what is authorized in terms of regulation-making, there are
several conditions precedent that accompany the authority of the GIC to
designate the U.S. a safe third
country. First, section 102(2) sets out several factors which must be
considered before designating a country. There are no strict standards
established for the consideration of the four factors but their consideration
is phrased in mandatory language. …
[79]
The main condition at issue in this case is section 102(1)(a), which states
that the GIC is authorized to enact regulations that include provisions
“designating countries that comply with Article 33 of the Refugee
Convention and Article 3 of the Convention Against Torture.” The provision
requires that compliance with the non-refoulement provisions of the
Refugee Convention and the CAT is a necessary pre-condition to designation. It
was my conclusion earlier that if a country did not comply with the relevant
articles of the two Conventions, the GIC had no power to designate the country
as “safe”. It is my further conclusion that in reaching this determination, the
GIC must base its decision on the practices and policies of that government in
respect of claims under the Refugee Convention and the obligations under the
Convention Against Torture.
[67]
The
earlier conclusion to which he refers are the following (Reasons, paras. 56 and
57):
[56]
However, read as a whole, s. 102 gives to the GIC the discretion to enter into
a STCA only upon specific conditions, a fundamental condition is compliance with
the specific articles of the Refugee Convention and Convention against
Torture. I do not interpret the provision as giving the GIC the power to
enter into a STCA where the country does not comply with those preconditions.
It simply gives the GIC the discretion to set up a regulation to designate a
country as “safe” if the country meets the conditions of compliance.
[57] To
interpret s. 102(1) as giving the GIC discretion to enter into such agreements
with countries that did not comply with the Refugee Convention and Convention
against Torture would make a mockery of Canada’s international commitments, of the very
purpose of our domestic laws and even of the internal logic of s. 102(1). There
would be no need to consider whether the country is a party to the Refugee
Convention and Convention against Torture (s. 102(2)(a)), nor that
country’s policies and practices with respect to claims under the Refugee
Convention or its obligations under the Convention against Torture –
both factors are compulsory factors to be considered. Nor would there be any
merit in requiring an ongoing review of these factors (s. 102(3)) which is a
requirement phrased in directory terms “must ensure the continuing review”.
[My emphasis]
[68]
In so
saying, the Applications judge accepted the respondents’ submission that
“actual” compliance was a condition precedent to the exercise of the delegated
authority. According to the Applications judge, what had to be shown is
“actual” protection from refoulement (Reasons, para. 136). He puts the
matter this way earlier in his reasons (Reasons, para. 60):
In
my view, the issue is whether the conditions for passing the Regulation have
been met on an objective basis. The conditions are framed in terms of legal
criteria and address the matter in absolute terms of compliance with
international law; not in terms of the GIC’s opinion or reasonable belief
in such compliance.
[My emphasis]
[69]
His lengthy
analysis of the evidence focuses on whether “actual” compliance or compliance
“in absolute terms” with the respective conventions had been demonstrated
(Reasons, paras. 106 to 236 and 241 to 263). With respect to Article 33 of the Refugee
Convention, he held that the “instances of non-compliance” were such that
the U.S. could not be said to comply
(Reasons, para. 240). With respect to the Convention against Torture, he
finds that the respondents’ evidence that the U.S. does not comply with Article
3 “more credible” than the appellant’s since it was supported by “real life
examples” that the U.S. does not comply (Reasons, para. 262). The Applications
judge, applying a standard of reasonableness to what he perceives as a
“decision”, concludes that the U.S. does not comply with either
Conventions, and that the designation of the U.S. as a safe country, was ultra vires
the IRPA.
[70]
I note in
passing that in reaching this conclusion the Applications judge did not concern
himself with the fact that much of the evidence that he reviewed was not in
existence when the GIC designated the U.S.
since it relates to cases, events and legislative modifications, which are
subsequent to the date of the promulgation. More is said about this later.
[71]
I agree
with Counsel for the respondents that the question whether the Applications
judge properly construed the conditions precedent to the exercise of the
delegated authority raises a pure issue of statutory construction:
… The words
of the Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act
and the intention of Parliament (Rizzo & Rizzo Shoes, [1998] 1
S.C.R. 27 at para. 21).
[72]
Paragraph
101(1)(e) of the IRPA provides that a person entering Canada from a
“designated country” is ineligible to have his or her claim for refugee protection
considered by the Immigration and Refugee Board. For the purpose of giving
effect to this provision, subsection 102(1) of the IRPA gives the GIC the power
to promulgate regulations governing the treatment of such claims which may
include provisions designating countries that comply with Article 33 of the Refugee
Convention and Article 3 of the Convention against Torture; and
respecting the circumstances and criteria applicable to a claimant who comes to
Canada from such a country. This is a broad grant of authority intended to give
effect to Parliament’s clearly expressed intent that responsibility for the
consideration of refugee claims be shared with countries that are respectful of
their Convention obligations and human rights.
[73]
In this
respect, subsection 102(2) of the IRPA requires that the GIC consider, prior to
designating a country, the country’s policies and practices with respect to the
Refugee Convention and the Convention against Torture as well as
its human rights record. In recognition of the fact that such policies,
practices and record can evolve over time, subsection 102(3) of the IRPA
requires the GIC to conduct an ongoing review of these factors once a country
has been designated. Where the GIC concludes by reasons of the evolution of
those factors that the designation is no longer warranted, section 159.7 of the
Regulations allows the Government of Canada to unilaterally suspend or
terminate the Safe Third Country Agreement.
[74]
Significantly,
subsection 102(1) of the IRPA provides that a designation may be made “for the
purposes of this Act” and section 3 of the IRPA provides amongst others the
following two:
3 (2) The objectives of this Act with respect to refugees are …
(b) to fulfill
Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to
international efforts to provide assistance to those in need of resettlement;
…
(d) to offer
safe haven to persons with a well-founded fear of persecution based on race,
religion, nationality, political opinion or membership in a particular social
group, as well as those at risk of torture or cruel and unusual treatment or
punishment;
|
3 (2) S’agissant des réfugiés, la présente loi a pour
objet : …
b) de
remplir les obligations en droit international du Canada relatives aux
réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de
participer aux efforts de la communauté internationale pour venir en aide aux
personnes qui doivent se réinstaller;
…
d)
d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait
de leur race, leur religion, leur nationalité, leurs opinions politiques,
leur appartenance à un groupe social en particulier, ainsi qu’à ceux qui
risquent la torture ou des traitements ou peines cruels et inusités;
|
Also
relevant is paragraph 3(3)(f) of the IRPA which sets out Parliament’s
requirement that the Act be construed in a manner which “complies with
international human rights instruments to which Canada
is a signatory”.
[75]
As I read
the relevant provisions, the scheme implemented by Parliament has, as its
objective, the sharing of responsibility for the consideration of refugee
claims with countries that are signatory to and comply with the relevant Articles
of the Conventions and have an acceptable human rights record. The factors to
be considered before designating a country are expressly set out in subsection
102(2) of the IRPA. The consideration of these factors is framed as a condition
precedent to the designation of a country as the introductory words make clear:
“the following factors are to be considered”; “il est tenu compte des facteurs
suivants”.
[76]
Keeping in
mind that the statutory objective is to designate countries that comply with
the relevant Articles of the Conventions and are respectful of human rights,
the GIC could not designate a country if it was not satisfied that the
country’s policies, practices and record indicate compliance. I take issue with
the Applications judge’s suggestion that unless “compliance” is made a
condition precedent, the GIC would have discretion to designate a country that
does not comply (Reasons, para. 56). It seems clear that the GIC would be
acting for an improper purpose if it was to designate a country which it
considers not to be compliant.
[77]
This
misapprehended concern that the GIC would have the discretion to designate a
country that does not comply appears to be what led the Applications judge to transform
the statutory objective of designating countries “that comply” with the
respective Conventions, into a condition precedent (Reasons, para. 57). The
error is compounded by the Applications judge’s further conclusion that what
must be established is “actual” compliance or compliance “in absolute terms”.
[78]
Subsection
101(2) does not refer to “actual” compliance or compliance “in absolute terms”
nor does it otherwise specify the type and extent of compliance contemplated.
However, Parliament has specified the four factors to be considered in
determining whether a country can be designated. These factors are general in
nature and are indicative of Parliament’s intent that the matter of compliance
be assessed on the basis of an appreciation by the GIC of the country’s
policies, practices and human rights record. Once it is accepted, as it must be
in this case, that the GIC has given due consideration to these four factors,
and formed the opinion that the candidate country is compliant with the
relevant Articles of the Conventions, there is nothing left to be reviewed
judicially. I stress that there is no suggestion in this case that the GIC
acted in bad faith or for an improper purpose.
[79]
Indeed, no
such suggestion could be made based on this record. The Regulatory Impact
Analysis Statement (the “RIAS”), published 60 days prior to the effective
date of the promulgation, indicates that the GIC consulted with a number of
non-governmental organizations who felt that the U.S. did not meet its Convention obligations.
These views were considered together with those of others. In particular, the
RIAS notes that the UNHCR expressed the view that the U.S. (like Canada), meets its international obligations
(Appeal Book, Vol. 11, p. 3160). Two weeks before the effective date of the
promulgation, Mr. Asadi, the UNHCR representative in Canada, reiterated before
the House of Commons Standing Committee on Citizenship and Immigration that “we
consider the U.S. to be a safe country” (Appeal Book, Vol. 11, p. 3247). Given the
position of the UNHCR, the main supervisory body in relation to refugee
protection, it cannot be suggested that the GIC was not acting in good faith, when
it designated the U.S. as a country that complies
with its Convention obligations.
[80]
It follows
that the fact that the respondents believe, and that the Applications judge
agreed, that the U.S. does not “actually” comply is irrelevant since this was
not the issue that the Applications judge was called upon to decide (compare Telecommunications
Workers Union v. Canadian Radio-Television and Telecommunications Commission,
2003 FCA 381, [2004] 2 F.C.R. 3 at paras. 39 to 43). What is relevant is that
the GIC considered the subsection 102(2) factors and, acting in good faith, designated
the U.S. as a country that complies
with the relevant Articles of the Conventions and was respectful of human
rights.
[81]
I should
add as an aside that even if “actual compliance” was a condition precedent, the
conclusion reached by the Applications judge to the effect that the U.S. did
not meet that requirement at the time of promulgation could not stand since it
is largely based on evidence which postdates the time of the designation (see
paras. 87 and 88 below).
[82]
In short,
it was not open to the Applications judge to hold on any of the alleged grounds
that the designation of the U.S. as a safe third country and the related
Regulations were outside the authority of the GIC or that the Safe Third
Country Agreement between Canada and the U.S. was illegal. I would therefore answer
the second certified question in the negative.
The failure to conduct the ongoing review
[83]
In their
memorandum, at paragraph 95, the respondents state that they “originally sought
a declaration that both the original and the ongoing designation of the U.S. as a safe third country via the
continuing operation of the Regulations was unconstitutional and ultra vires”
(emphasis by the respondents). They assert earlier in their Memorandum (para.
12) that they sought a declaration that the appellant had erred by failing to
meet “her statutory continuing review obligation”. The record does not bear
this out. The application filed by the respondents is aimed at the alleged
illegal designation of the U.S. and nothing else. No mention
is made of the alleged failure to review and no declaratory relief (or any
other type of relief) is sought in that regard. This is how the Applications
judge saw the application based on his own description of the matter before him
(Reasons, paras. 1 and 2), and there is no indication that an amendment to the
application brought by the respondents was sought or obtained in the course of
the proceedings. I note, however, that both the respondents and the appellant
made submissions on this issue, although there is no discussion as to the remedy
which would flow from the alleged failure to review (see the parties’
respective Supplementary Submissions, Appeal Book, Vol. 1, pp. 242 to 245 and
pp. 357 and 358).
[84]
In his
reasons, the Applications judge conducts a judicial review of this issue
(Reasons, paras. 264 to 275) and the formal judgment that he gives declares
“that the Governor-in-Council failed to ensure the continuing review of the
United States as a “safe third Country” as required by subsection 102(2) of
IRPA”.
[85]
It is not
clear how this discrete issue became part of the judicial review application. When
asked whether an amendment was obtained, counsel for the respondents (Ms.
Jackman) could not point to one but gave a stern response about how things are
done by the Immigration bar. She suggested that an amendment can in effect be
made without anyone speaking to it (by “osmosis” is the description that I
used), and that a notice to the profession would be required, if this Court was
to find that the amendment which took place in this case was somehow inappropriate.
[86]
I do not
believe that I am advocating a return to procedural formalism if I suggest that
an amendment of the type here in question required, at the very least, that the
matter be brought to the attention of the Applications judge so that he could put
his mind to the distinct issues which flowed from it. The failure to do so in
this case has given rise to significant difficulties, which do not assist anyone.
[87]
First, the
Applications judge never alludes to the fact that this additional issue becomes
relevant only if the designation was validly promulgated in the first place. His
conclusion was that the designation was void ab initio. Second, the Applications
judge reviews the matter of the alleged failure to perform the ongoing review
as a decision subject to a standard of reasonableness (Reasons, para. 105).
There was, on the record before the Applications judge, no suggestion that the
GIC was asked to perform this duty and refused to do so. Absent a decision, the
remedy which flows from a failure to perform a statutory duty is a mandamus compelling
the government actor to perform the duty.
[88]
More
importantly, the issue raised by the purported amendment allowed the Applications
judge to have regard to an extensive body of evidence, adduced by both sides,
which postdates the designation. The Applications judge relied on this evidence
indiscriminately to support both his conclusion that the GIC had failed to
conduct the ongoing review and that the designation was ultra vires. [This
is evident throughout the reasons, but see for example paragraphs 7, and 260 to
262 where the Applications judge relies on the Maher Arar report to support his
view that the designation was illegal when made in 2004 although the report was
only released in 2006.]
[89]
There is
one key date that the Applications judge had to be mindful of: December 29,
2004 when the Regulations came into force, the last relevant date for the
assessment of the vires issue. Regardless of the conditions precedent which
one wishes to apply, the vires of the Regulations could not be assessed
on the basis of facts, events or developments that are subsequent to the date
of the promulgation. The Applications judge seems to recognize so much at
paragraph 273 of his reasons, where he says that the third country must be
shown to have complied with the relevant Articles of the Conventions before the
Regulation is passed. However, he reviewed the evidence without regard to this date
(Appendix II to these reasons sets out, from a cursory review, the body of
evidence before the Applications judge which postdates the date of promulgation
as well as that which he specifically considered in support of his conclusion
that the Regulations were ultra vires).
[90]
In my
respectful view, the Applications judge’s failure to focus on the relevant date
(as well as the other issues which went unaddressed) can only be attributed to
the fact that the purported amendment to include the alleged failure to conduct
the ongoing review was never spoken to. The respondents’ contention that an
amendment of the type here in issue can take place without being spoken to is
ill advised and serves no one. If the respondents wanted to enlarge their
judicial review application, it was incumbent upon then to bring the
appropriate motion.
[91]
That said,
because the parties conducted their case on the basis that some form of
amendment took place, I will nevertheless address the Applications judge
conclusion that the GIC failed to conduct the ongoing review.
[92]
In my
respectful view, the conclusion reached by the Applications judge suffers from
the same fundamental flaw as his initial conclusion: it assumes that the GIC had
an ongoing obligation to monitor “actual” compliance or compliance “in absolute
terms”. That is not how the obligation to review is framed. The obligation is
directed at the review of the four factors identified in subsection 102(2) of the
IRPA, and is intended to ensure that the GIC continues to monitor these factors
so as to be in a position to reassess the opportunity of maintaining the
designation should the evolution of the factors so require.
[93]
In this
respect, the record shows that Directives were adopted as early as October 12,
2004, to ensure “… a continuing review of factors set out in subsection 102(2)
of the Immigration and Refugee Protection Act with respect to countries
designated under paragraph 102(1)(a) of that Act” (Scoffield Affidavit,
Appeal Book, Vol. 11, Tab 33, para. 42 and Exhibit B-11). These Directives
require the Minister of Citizenship and Immigration to undertake a review “on a
continuous basis” of those factors and report to the GIC on a regular basis, or
more often should circumstances warrant.
[94]
The record reveals that on May 29, 2006, the UNHCR’s representative in
Canada again appeared before the House of Commons Standing Committee on
Citizenship and Immigration regarding the UNHCR’s one year review of the Safe
Third Country Agreement and expressed the view that both countries continue to
qualify as safe third countries (see Scoffield Affidavit, Appeal Book, Vol. 11,
Tab 33, p. 3101, para. 36 and Exhibit B10, p. 3247).
[95]
Further, in June 2006, pursuant to Article 8(3) of the Safe Third
Country Agreement, the UNHCR released a report, assessing the first 12 months
of the Safe Third Country Agreement’s operation (Tom Heinze Affidavit, Appeal
Book, Vol. 12, Tab 34, Exhibit TH2, p. 3382). The crux of the report’s
conclusions is as follows (Tom Heinze Affidavit, Appeal Book, Vol. 12, Tab 34,
Exhibit TH2, p. 3387):
It is the UNHCR’s overall assessment that the Agreement has generally
been implemented by the Parties, according to its terms, and, with regard to
those terms, international refugee law. The Agreement appears to be functioning
relatively smoothly. Individuals who request protection are generally given
adequate opportunity to lodge refugee claims at the ports of entry and
eligibility determination decisions under the Agreement have generally been
made correctly.
UNHCR notes, however, particular concern with respect to
the Parties’ continued use of the direct back policy. This has been especially
problematic for asylum-seekers directed back from Canada to the United States, as a number were detained
in the United States and unable to
attend their scheduled interviews….
“The direct back policy” refers to the
process whereby an asylum seeker approaches a port of entry at a time when
border officials are unable to process his or her claim and is returned to U.S. after
having been given a scheduled time for an interview. The UNHCR criticism was
that many claimants were not allowed to re-enter Canada to
attend their scheduled interviews.
[96]
The Canadian Government, in conjunction with the U.S. and the
UNHCR, released a further report in November 2006. As part of this report, the
Canadian authorities indicated that they had phased out the use of “direct back
policies” as of August 31, 2006 (Canada – United States Safe Third Agreement,
Year One Review, Appeal Book, Vol. 12, p. 3337)
[97]
In my
respectful view, the record does not support the Applications judge’s
conclusion that the GIC is in breach of its obligation to conduct the ongoing
review mandated by subsection 102(3) of the IRPA.
Third certified question: the Charter challenge
[98]
At
the hearing, counsel for the respondent organizations insisted on the fact that
their public interest standing was not being challenged in this appeal. As
previously noted, the Applications judge refused to certify the question
proposed by the appellant challenging their standing. However, the Applications
judge’s refusal to certify a question with respect to standing does not
immunize this issue from review on appeal. Once a question has been certified,
and an appeal is launched, the Court’s appellate jurisdiction is not limited by
the certified question(s) (Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982 at para. 25; Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para.
12).
[99]
Relying
on their public interest standing, the respondent organizations successfully challenged
the validity of the Regulations on Charter grounds, based on evidence (the same
evidence that formed the basis of the vires challenge) that a class of
refugees would be subject to a real risk of refoulement as a result of
the Safe Third Country Agreement and that therefore, their section 7 and
section 15 Charter rights were violated. To this end, they maintained, and
the Applications judge agreed, that their challenge is not dependent on John
Doe’s (Reasons, para. 51), but concerns a class of refugees, which they say
would be treated in a certain way if they were to present themselves at a
Canadian land border point of entry (idem).
[100]
In my respectful view, this hypothetical approach, which the Applications
judge entertained, goes against the well established principle that a Charter challenge cannot
be mounted in the abstract. The only exception is where it can be shown that
the impugned legislation would otherwise be immune from challenge (Canadian
Council of Churches, supra (S.C.C) at para 42):
42 From the material
presented, it is clear that individual claimants for refugee status, who have
every right to challenge the legislation, have in fact done so. There are,
therefore, other reasonable methods of bringing the matter before the Court. On
this ground the applicant Council must fail. I would hasten to add that
this should not be interpreted [page256] as a mechanistic application of a
technical requirement. Rather it must be remembered that the basic purpose
for allowing public interest standing is to ensure that legislation is not
immunized from challenge. Here there is no such immunization as plaintiff
refugee claimants are challenging the legislation. Thus the very rationale for
the public interest litigation party disappears. …
[My emphasis]
The Applications judge distinguishes
the present situation from the one confronting the Supreme Court in the above
case on the basis that in the matter before him, a refugee would have to bring
the challenge from outside of Canada (Reasons, para. 43).
[101] With
respect, there is no evidence that a refugee would have to bring a challenge
from outside Canada. Refugees must present themselves at a Canadian land
border port of entry in order for an officer to determine whether, on the
balance of probabilities, they fall within one of the enumerated exceptions and
whether the claim should be referred to the Immigration and Refugee Board. During
this time, the refugee claimant remains in Canada, as
according to the Canadian Government’s one year report alluded to earlier
(para. 95), Canadian authorities phased out the “direct send back policy” as of
August 31, 2006. During this time, the refugee claimant can be represented by counsel
(Reasons, para. 288). Furthermore, in its one year report, the Canadian
Government encourages non-governmental organizations to assist in maintaining
the well-being of refugees throughout the process (Affidavit of Tom Heinze,
Appeal Book, Vol. 12, Tab 34, Exhibit TH2, p. 3336). It follows that once it is
determined that a claimant cannot remain in Canada by
reason of the Safe Third Country Agreement, nothing prevents the claimant from
challenging this determination on Charter grounds.
[102] Consequently,
in this case, the ability of the respondent organizations to bring the Charter
challenge depends on John Doe. However, John Doe never presented himself at the
Canadian border and therefore never requested a determination regarding his
eligibility. Following the renewed evidence regarding the threat that the FARC
poses to his life, U.S. Immigration authorities agreed to reconsider his claim
and he remains in the U.S. The Applications judge’s conclusion that John Doe should
nevertheless be considered as having come to the border and as having been denied
entry runs directly against the established principle that Charter challenges
cannot be mounted on the basis of hypothetical situations.
[103]
There is, in this case, no factual basis upon which to assess the
alleged Charter breaches. The respondent organizations’ main contention
is directed at a border officer’s lack of discretion to forgo returning a
claimant to the U.S. for reasons other than the enumerated exceptions set out
in section 159.5 of the Regulations. This challenge, however, should be
assessed in a proper factual context – that is, when advanced by a refugee who
has been denied asylum in Canada pursuant to the Regulations and faces a real
risk of refoulement in being sent back to the U.S. pursuant
to the Safe Third Country Agreement.
[104]
It follows that the Charter challenge should not have been entertained
by the Applications judge. I would therefore decline answering the third
certified question.
[105]
For these reasons, I would allow the appeal, set aside the decision of
the Applications judge and answer the certified questions as follows:
1) 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?
Answer: correctness;
2) 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?
Answer: no;
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?
Answer: no answer can be given at this stage.
By agreement, the parties will assume their respective costs.
“Marc Noël”
“I
agree,
J. Richard C.J.”
EVANS
J.A. (Concurring Reasons):
A. INTRODUCTION
[106]
I have had
the advantage of reading the reasons of my colleague, Noël J.A., and gratefully
adopt his careful review of the facts. I agree that the appeal should be
allowed. I agree also that the Applications Judge should not have entertained
the respondents’ request for declarations that the Regulations are invalid
because they are in breach of sections 7 and 15 of the Charter.
[107]
However,
in my opinion, the reasons for concluding that the Applications Judge erred in
determining the merits of the Charter challenges to the Regulations are, for
the most part, equally applicable to the administrative law challenge. To grant
the declaratory relief sought by the respondents would be premature and serve
little useful purpose. Since the application for judicial review should have
been dismissed without a determination of the substantive issues raised, no
questions should have been certified, and none should be answered by this
Court.
[108]
I would
only add that my colleague’s reasons do not persuade me that the issues of
statutory interpretation and the scope of judicial review raised by the
respondents’ application are so clear and incontrovertible that they warrant a
departure from the guiding principle of judicial restraint that it is generally
better to say less than more.
B. LIMITS ON THE AWARD OF
DECLARATORY RELIEF
[109]
The
declaration is a flexible public and private law remedy, unencumbered with
historical and technical baggage. Nonetheless, a declaration that the exercise
of a statutory power is invalid will not be granted before the issues have
ripened sufficiently to make them appropriate for adjudication. It may serve
little useful purpose to grant a declaration prematurely, in the absence of
concrete facts about an individual whose rights are or may be at stake.
[110]
While
courts have entertained requests for declarations in respect of questions which
may arise and affect individuals in the future, they must be satisfied that the
benefits of making a legal determination outweigh the disadvantages of
pronouncing in the abstract. In my opinion, the balance in this case clearly
favours judicial restraint.
[111]
Litigants
seeking declaratory relief have also sometimes been barred by a lack of
standing. Before the Applications Judge the appellant had argued that the
application should be dismissed on this ground. However, the Judge exercised
his discretion to confer public interest standing on the respondents in part
because he found that there was no effective alternative method of bringing the
validity of the Regulations before the Court. Claimants, he said, could not
realistically be expected to make a claim at the Canadian border, only to be
sent back to the United
States to face
the possibility of refoulement. Accordingly, the Applications Judge
distinguished Canadian Council of Churches v. Canada (Minister of Employment
and Immigration), [1992] 1 S.C.R. 236, on the ground that the potential
refugee claimants in that case had an effective alternative remedy because they
would be within Canada.
[112]
Counsel
for the appellant did not pursue before us the question of standing. However,
the fact that the respondent organizations are not affected by the outcome of
the litigation cannot be altogether separated from the issues of prematurity
and utility. The inclusion of John Doe as an applicant does not cure the latter
difficulties, even though, having been denied asylum and a withholding of
removal from the United States, he may wish to come to Canada to claim refugee
protection. I note that, at the time of this litigation, John Doe’s claim not
to be removed from the United States was being reassessed and he had not
applied at the border for refugee protection in Canada.
[113]
True, a
declaration of invalidity of the Regulations on Charter or administrative law
grounds might well assist people like John Doe, who believe that they have a
better chance of establishing their claim for protection in Canada than in the
United States, but are reluctant to come to the border for fear that they will
be summarily turned back, and then promptly removed by United States’
authorities. If the Regulations were declared to be invalid, of course, they
would be assured of access to Canada’s refugee determination
system.
[114]
However,
Canadian law respecting refugee protection is only engaged when claimants seek
protection from Canadian officials in Canada,
including a port of entry. The provisions of neither the international Conventions
relied on in this litigation, nor the Charter, require Canada to abstain from enacting regulations
which may deter nationals of third countries in the United States from coming to the Canadian border to
claim refugee protection or protection from torture. Article 33 of the Refugee
Convention (“RC”) and Article 3 of the Convention Against Torture (“CAT”)
impose a negative obligation not to refoule, not a positive obligation
to receive potential claimants: James C. Hathaway, The Rights of Refugees Under
International Law (Cambridge: Cambridge University Press, 2005) at p. 301.
C. BARS TO RELIEF IN THE PRESENT
CASE
[115]
There are
two essential problems with the declarations of invalidity sought in the
respondents’ application for judicial review with respect to the validity of
the Safe Third Country Agreement (“STCA”) Regulations. First, they do not match
the allegations that, with respect to some categories of claimant, the policy
and practice of the United
States
concerning refugee protection do not comply with international law. Second,
they are not tailored to meet the proper concern of Canadian law, namely that
claimants for refugee protection in Canada
are not returned to a country to face a real risk of removal in contravention
of Article 33 of the RC and Article 3 of the CAT. In short, to grant the
declarations sought would serve no legitimate purpose and would require the
Court to embark on inadequately focussed and abstract inquiries.
(i) Declarations of invalidity too
broad
[116]
The
respondents allege that the policy and practice of the United States are non-compliant with Article 33 of the
RC and Article 3 of the CAT only with respect to certain categories of
claimant. However, to declare the Regulations implementing the STCA to be
invalid in their entirety, as the Applications Judge did, seriously
overshoots the mark.
[117]
It is not
a satisfactory solution of this difficulty to limit the scope of a declaration
of invalidity to the categories of claimant for whom it is alleged that the United States is not a safe third country.
The respondents’ evidence does not purport to show that there is a real risk
that every member of these categories, or significant numbers of them,
are, in fact, at real risk of being refouled.
(ii) Timing
[118]
Whether a
country complies with its international obligations may change over time. If,
as the respondents allege, the validity of the Regulations depends on the
reasonableness of findings made by the Governor in Council about compliance at
the time of their promulgation, it would seem very odd to declare them to be
invalid, if, at the time of the litigation, the situation had changed and the United States was in compliance. On the
other hand, delegated legislation surely cannot be invalid one day and valid
the next, or vice versa.
[119]
For the
purpose of ensuring that Canada is not implicated in a refoulement, the
only relevant time for determining compliance by the United States is when an
individual claims refugee status or protection from torture at the Canadian
border and alleges that, if sent back, there is a real risk that she will refouled
by the United States.
(iii) Unwieldy nature of the inquiry
[120]
The
inquiry that the respondents say is required by this application for judicial
review is another indication that it is misconceived. The Court is asked to
examine, at large, wide swaths of U.S.
refugee policy and practice in order to determine whether it was reasonable for
the Governor in Council to conclude that it complied with international law.
[121]
The nature
and breadth of this inquiry is unlike the more focussed inquiries typically
undertaken through the judicial process. Its inherently problematic nature
strongly suggests that a court should only be prepared to embark upon it if
necessary to protect individuals from being indirectly refouled by
officers of the Canadian Border Services Agency in breach of the Charter and Canada’s international obligations.
As I now seek to demonstrate, it is not necessary.
(iv) Alternative avenue of recourse
[122]
I start
with two premises. First, unless clearly inconsistent with the statutory text,
the IRPA and any regulations made pursuant to it must be construed and applied
so as to be consistent with Canada’s international obligations in Article 33 of
the RC and Article 3 of the CAT. IRPA, paragraph 3(3)(f) expressly says
so. Second, regulations cannot be applied to an individual at Canada’s border in a manner that
breaches their Charter rights.
[123]
Article 33
of RC and Article 3 of the CAT proscribe indirect as well as direct refoulement.
Hence, refugee claimants at the Canadian land border may not be turned back to
the United States pursuant to the STCA Regulations if they can establish that,
if returned, they would face a real risk of their removal by the United States to a country where they have
a well founded fear of torture, or persecution on a Convention ground. Such a
risk assessment must be made in respect of individual claimants, in light of
the United States’ law and practice at that
time as it pertains to them. A denial of access to Canada’s refugee determination system would be
subject to an application for leave and for judicial review. These propositions
would seem to flow inexorably from Singh v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177.
[124]
Claimants
for refugee status at the Canadian land border must already be examined to
determine if they are eligible for access to Canada’s refugee determination
system as falling within one of the categories excluded from the STCA: the
presence of a close relative in Canada, for example. The two-level
administrative process established for enabling a person claiming a statutory
exemption from the STCA is, according to the Applications Judge, generally
completed within a day. This process could equally well be used to determine whether
a person was eligible for a refugee determination in Canada, on the ground that, as a person facing
a real risk of refoulement if returned to the United States, the Regulations may not validly be
applied to her.
[125]
Of course,
adding a risk assessment in some cases may increase the time and resources
needed to make a decision on eligibility, even though, until a risk of refoulement
was established, a full refugee determination would not be required. Nor could
a claimant be returned to the United States pending an eligibility
determination, unless the United
States’
authorities provided an assurance that the claimant would not be removed until
the eligibility decision had been made. However, I see no viable alternative if
refugee claimants are not to be subject to indirect refoulement in
violation of their Charter rights and IRPA. No doubt guidelines will be
developed to assist officers in making these eligibility determinations.
[126]
In this
context, the decision of the House of Lords in Reg. v. Secretary of State
for the Home Department, ex. p. Yogathas, [2002] UKHL 36 is illuminating.
Pursuant to the Dublin Convention, an agreement among members of the European
Union with broadly similar principles and objectives as the STCA, the Secretary
of State had decided to return the applicants, nationals of Sri Lanka, to Germany, their country of
first arrival in the European Union, without a determination in the United Kingdom of their refugee claims. The
applicants argued that, contrary to Article 33 of the RC, German law did not
recognize refugee claims based on persecution by non-state agents and that
consequently it would be unlawful for the Secretary of State to return them to Germany to face refoulement.
[127]
The House
of Lords recognized the existence of a tension between the need to ensure the
efficient implementation of international “burden sharing” arrangements for the
accelerated return of refugee claimants, and the need to protect fundamental
human rights, including those created by Article 33: see paras. 58 and 74.
[128]
Thus, it
was said, there is a heavy burden on claimants to establish that they face a
real risk of refoulement from a country which was considered safe by the
Secretary of State and was a party to the relevant international human rights
instruments: para. 74. The fact that the law of the “safe country” may not in
theory comply with Article 33 of the RC is not in itself sufficient to prevent
a lawful return to that country. The question, rather, is a practical one: is
there in fact a real risk that the claimant would be refouled if
returned: para. 47.
[129]
The House
of Lords also made it clear that, if satisfied that there were substantial
grounds for believing that a claimant would be at risk of refoulement if
sent back to the country of first arrival, the Secretary of State could not
simply return the claimant to that country because of the existence of the
“country of first arrival” agreement: paras. 11 and 74. A claimant who
establishes a risk of refoulement would then be eligible for a refugee
determination in the United
Kingdom.
[130]
In short,
a declaration of invalidity of the STCA Regulations is not required in order to
ensure that they are not applied to claimants for protection at the land border
in breach of either Canada’s international obligations
not to refoule, or the Charter.
D. CONCLUSIONS
[131]
For these
reasons I would allow the appeal.
“John M. Evans”