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CONSTITUTIONAL ISSUES AND LEGISLATION -  Convention refugees

Wednesday, June 09, 2021 @ 5:40 AM  


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Appeal by Canada from a Federal Court judgment declaring provisions preventing refugee protection claims from persons arriving from the United States constitutionally invalid. Individuals arriving from a country designated as a safe country under the Immigration and Refugee Protection Regulations were ineligible to claim refugee protection in Canada, subject to certain exceptions. From 2004 onward, the United States was designated as safe under the Act and Regulations as in accordance with the Safe Third Country Agreement between Canada and the United States. Under the Agreement, those who arrived in the United States must claim refugee status in the United States under United States law. They cannot leave the United States and claim refugee status in Canada. If they do so, Canada can refuse to consider their refugee claim and, subject to exceptions, return them to the United States. The respondent claimants arrived from the United States and were ruled ineligible for refugee protection in Canada. They sought judicial review, alleging that the designation of the United States as a safe country was ultra vires the Immigration and Refugee Protection Act, and that the designation and resulting ineligibility breached ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter) in a manner not justified under s. 1. The Federal Court accepted the s. 7 argument and declared s. 101(1)(e) of the Act and s. 159.3 of the Regulations of no force or effect. Canada appealed. A stay of the declaration of invalidity was granted pending determination of the appeal.

HELD: Appeal allowed. The claimants’ Charter challenge offended the fundamental requirement of causation and involved an insufficient evidentiary record to permit responsible adjudication of the key issues. It was impermissible to take interrelated legislative provisions in artificial isolation for the purpose of a selective challenge to their constitutional validity. The cause of a Charter infringement was not the designation of the United States as a safe country, but rather the reviews and administrative conduct pursuant to s. 102(3) of the Act that caused the designation to continue. No such challenge was advanced in respect of that review process and the evidence in respect of the reviews and administrative conduct was accordingly too incomplete to allow for an informed Charter adjudication. Where administrative action or inaction under legislation was responsible for unconstitutional effects, it is what must be challenged by way of judicial review, not the legislation. In any event, the impugned provisions were not contrary to the doctrines of overbreadth or gross disproportionality when applied properly to Canadian state action and effects caused by that state action.

Canada (Minister of Citizenship and Immigration) v. Canadian Council for Refugees, [2021] F.C.J. No. 322, Federal Court of Appeal, M. Noël C.J. and D.W. Stratas and J.B. Laskin JJ.A., April 15, 2021. Digest No. TLD-June72021008