Tapambwa v. Canada (Citizenship and Immigration)

Tapambwa v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-05-26
Neutral citation
2017 FC 522
File numbers
IMM-1516-16
Notes
A correction was made on November 23, 2017.
Reported Decision
Decision Content
Date: 20170526
Docket: IMM-1516-16
Citation: 2017 FC 522
Ottawa, Ontario, May 26, 2017
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
STENSIA TAPAMBWA
and
RICHARD TAPAMBWA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview [1] The Applicants, Stensia Tapambwa and Richard Tapambwa, seek judicial review of a decision dated February 25, 2016 by a pre-removal risk assessment [PRRA] officer [the Officer or PRRA Officer], who conducted a “restricted PRRA”, meaning that the Officer considered their risks only under s. 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA], not under s. 96. They challenge the Officer’s refusal to consider their risks under s. 96 of the IRPA, the failure to afford them ministerial relief under s. 25.2 of the IRPA against the provisions of the IRPA limiting them to a restricted PRRA, and the constitutional validity of these provisions of the IRPA.
[2] The Applicants take issue with being confined to a restricted PRRA as a result of a Refugee Protection Division [RPD] determination which excluded them from refugee protection under s. 98 of the IRPA based on complicity in crimes against humanity. Their position is that the RPD’s determination is inconsistent with the Supreme Court of Canada’s decision in Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SCC 40 [Ezokola], which changed the test for complicity in the commission of crimes against humanity. Ezokola was released on July 19, 2013, approximately eight months after the Applicants’ negative RPD decision.
[3] The Applicants’ arguments raise issues surrounding the interpretation of the IRPA based on principles of international law and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], as well as the constitutionality of the relevant IRPA provisions. Finally, the Applicants challenge the reasonableness of the Officer’s analysis under s. 97 of the IRPA.
[4] For the reasons that follow, this application is dismissed.
II. Background [5] The Applicants are citizens of Zimbabwe. Richard Tapambwa served in the Zimbabwean National Army [ZNA] for approximately twenty years and his wife, Stensia Tapambwa, served for approximately sixteen years. Each of the Applicants reached the rank of staff sergeant in the Data Processing Unit of the ZNA. After Mr. Tapambwa allegedly expressed political views hostile to the ruling party in March 2001, the Applicants left Zimbabwe and travelled to the United States. Despite residing in the United States for over ten years, they did not claim refugee protection in that country.
[6] In July of 2011, the Applicants came to Canada and claimed refugee protection. Their claims were denied by the RPD in November 2012, on the basis that they were excluded from refugee protection pursuant to s. 98 of the IRPA because there were serious reasons to consider they were complicit in crimes against humanity committed by the ZNA. The RPD also considered the claims of the Applicants’ children but, based on a negative assessment of the Applicants’ credibility, found that they were neither Convention refugees nor persons in need of protection. The Applicants’ application for judicial review of the RPD’s decision was dismissed on July 11, 2013.
[7] In May of 2013, the Applicants appeared before the Immigration Division [ID] for an admissibility hearing. Based on the findings of the RPD, the ID found that there were reasonable grounds to believe that the Applicants were inadmissible for violating human or international rights by committing an act constituting an offense referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24.
[8] The Applicants then submitted an application for a PRRA and requested relief from the Minister of Citizenship and Immigration [the Minister] against the IRPA provisions which entitled them to assessment only on the basis of s. 97 and not s. 96. The PRRA Officer declined to consider the request for ministerial relief, or to consider constitutional arguments raised by the Applicants in support of their position that their risk should be assessed under both ss. 96 and 97, concluding that PRRA officers were without the jurisdiction to do so.
[9] The Officer noted the RPD’s conclusion that the Applicants were excluded from refugee protection pursuant to s. 98 of the IRPA and Article 1F of the United Nations Convention Relating to the Status of Refugees [the Convention or Refugee Convention]. The Officer concluded that the Applicants were persons described under s. 112(3) of the IRPA and therefore were not eligible to make a claim for Convention refugee status. As such, the Officer considered their application for protection only on the basis of s. 97 of the IRPA and did not consider s. 96.
[10] After reviewing the evidence presented by the Applicants, the Officer rejected their application on the basis that they had failed to prove a personalized risk to their life or of cruel and unusual treatment or punishment upon return to Zimbabwe. The Officer therefore concluded that the Applicants had failed to meet the requirements of s. 97 of the IRPA and that they were not persons in need of protection.
III. Issues [11] The Applicants raise the following issues in this application:
A. Do Canada’s international legal obligations, s. 7 of the Charter, and the correct interpretation of s. 112(3) of the IRPA require an unrestricted PRRA on the facts of this case?
B. In the alternative, must the Minister exercise discretion under s. 25.2 of the IRPA to exempt the Applicants from the application of s. 112(3), such that failure to consider their request for an exemption vitiates the PRRA decision?
C. In the further alternative, does the statutory regime infringe the Applicants’ rights under s. 7 of the Charter?
D. Was the PRRA Officer’s s. 97 risk assessment reasonable?
[12] The Applicants’ position that portions of the IRPA infringe the Applicants’ rights under s. 7 of the Charter, and should therefore be declared of no force and effect, raises an additional preliminary issue: whether this Court should allow a late filing of their notice of constitutional question. The Applicants served notice but did so five days before the hearing of this application and moved at the hearing for an abridgement of the notice period.
IV. Analysis A. Preliminary Issue - Notice of Constitutional Question [13] Section 57(1) of the Federal Courts Act, RSC 1985, c F-7 states that the Court cannot judge legislation to be invalid, inapplicable or inoperable unless notice of the constitutional question has been served on the Attorney General of Canada and the Attorneys General of each province. Section 57(2) requires that such notice be served at least ten days before the day on which the constitutional question is to be argued, unless the Court orders otherwise.
[14] The parties have referred the Court to Ishaq v Canada (Minister of Citizenship and Immigration), 2015 FC 156, at paragraph 14, where Justice Boswell held that the Court may excuse late service of a constitutional notice by extending the time for service. At paragraph 15, Justice Boswell set out the applicable test as follows:
[15] The test for granting extensions of time generally has been set out in Canada (Attorney General) v Larkman, 2012 FCA 204 at paragraph 61, 433 NR 184 [Larkman]:
(1) Did the moving party have a continuing intention to pursue the application?
(2) Is there some potential merit to the application?
(3) Has the Crown been prejudiced from the delay?
(4) Does the moving party have a reasonable explanation for the delay?
Not all of these factors are always relevant nor do they all need to favour the moving party, and the “overriding consideration is that the interests of justice be served” (Larkman at paragraph 62). The same test should be applied here for purposes of subsection 57(2).
[15] Considering the Larkman factors, and relying on the fact that all the Attorneys General had provided written consent to the late filing of the notice, Justice Boswell extended the time for service of the notice of constitutional question.
[16] In the present case, the Respondent consented to excusing the late notice and acknowledged that the Attorney General of Canada had de facto notice of the constitutional question as a result of the constitutional arguments having been advanced through the Applicants’ written materials. However, the Respondent noted that it was not in a position to consent on behalf of the provincial or territorial Attorneys General. At the hearing of this application, this issue was raised, and the Applicants were afforded an opportunity to pursue such consent and report back to the Court in the days following the hearing. As such, the Court heard arguments on the issue of constitutional validity, while reserving on the decision whether to grant the Applicants the requested abridgment of the notice period and therefore on whether to rule on the invalidity arguments.
[17] The Applicants have subsequently provided the Court with written consent from all the Attorneys General of the provinces and territories, either consenting or not objecting to the abridgement of time and indicating no intention to intervene in this application. The Respondent then confirmed that, in light of these consents, it has no issue with the request for abridgement of the time period for the constitutional notice.
[18] Turning to the Larkman factors, it is clear that the Applicants have had a continuing intention throughout this application to pursue these constitutional issues. I also consider that there is sufficient potential merit to the application that this factor weighs in their favour. The Respondent has not been prejudiced by the delay. The Applicants offer little explanation for the delay, other than that the requirement for timely notice was apparently overlooked. However, considering all these factors and in particular the fact that neither the Respondent nor the other Attorneys General oppose the abridgement of time, the requested abridgement is granted.
B. Standard of Review [19] The Applicants take the position that the PRRA Officer’s s. 97 risk assessment is reviewable on a standard of reasonableness but that the other issues, being constitutional questions, questions of international law or pure questions of jurisdiction, are to be reviewed on the correctness standard. The Respondent does not take issue with this position. I agree that the standard of reasonableness applies to the s. 97 risk assessment. However, the selection of the standard applicable to the other issues is not as straightforward.
[20] The Applicants rely on Hernandez Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324 [Febles FCA] (affirmed 2014 SCC 68 [Febles SCC]), in which the Federal Court of Appeal held at paragraphs 22-25 that the correctness standard of review applied to the RPD’s interpretation of Article 1F of the Refugee Convention, noting the importance that a provision of an international convention be interpreted as uniformly as possible. However, the arguments in the case at hand relate more to the interpretation of provisions of the IRPA than to the interpretation of the Refugee Convention itself. The Federal Court of Appeal distinguished Febles FCA on a similar basis at paragraph 71 of B010 v. Canada (Minister of Citizenship and Immigration), 2013 FCA 87 (affirmed B010 v Canada (Minister of Citizenship and Immigration), 2014 SCC 58 [B010 SCC]) and also recently held in Majebi v. Canada (Minister of Citizenship and Immigration), 2016 FCA 274 [Majebi], at paragraph 5, that the interpretation of the Refugee Convention does not fall into one of the categories of questions to which the correctness standard continues to apply.
[21] I also note the analysis of standard of review conducted by the Federal Court of Appeal at paragraphs 19 to 20 of Canada (Minister of Citizenship and Immigration) v. Li, 2010 FCA 75. That case involved issues surrounding the interpretation and operation of s. 112(3) of the IRPA, which the Court concluded to be reviewable on a standard of correctness. The statutory interpretation issues raised in the present case also involve s. 112(3), including its interaction with s. 25.2. However, I am again conscious of the guidance by the Federal Court of Appeal in Majebi, that authorities that pre-date the articulation of the presumption of reasonableness review applicable to home statute interpretation, set out in cases such as Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers], must be approached with caution.
[22] I therefore consider the recent direction of the jurisprudence to favour a reasonableness review applicable to the issues of statutory interpretation raised by this application, including the effect of s 7 of the Charter other than in the context of an argument of constitutional invalidity (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12). However, questions of constitutional validity represent one of the categories to which the correctness standard continues to apply (see Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], at para 58; Alberta Teachers, at para 30). As such, the constitutional validity of the relevant provisions of IRPA should be reviewed on a standard of correctness (see also Atawnah v. Canada (Minister of Public Safety and Emergency Preparedness), 2016 FCA 144, at para 7).
[23] Regardless, I note that my conclusions on these issues are not based on any particular deference to the PRRA Officer’s decision, as that decision does not engage in analysis of these issues other than to conclude that the Officer did not have jurisdiction to consider the constitutional questions or request for ministerial relief under s. 25.2. As such, my conclusions on these issues, based on the analyses below, would remain the same whether viewed through the lens of correctness or reasonableness.
C. Legislation [24] The principal provision at issue in this application is s. 112(3), the relevant portion of which states as follows:
112 (3) Refugee protection may not be conferred on an applicant who
112 (3) L'asile ne peut être conféré au demandeur dans les cas suivants :
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
(a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée;
…
…
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention;
(c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés;
[25] Section 112(3) is significant because it determines whether an application for protection is considered under both ss. 96 and 97 of the IRPA, or s. 97 alone. This occurs by operation of the following provisions of s.113:
113 Consideration of an application for protection shall be as follows:
113 Il est disposé de la demande comme il suit:
…
…
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(c) s'agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
(d) in the case of an applicant described in subsection 112(3) — other than one described in subparagraph (e)(i) or (ii) — consideration shall be on the basis of the factors set out in section 97 and
(d) s'agissant du demandeur visé au paragraphe 112(3) — sauf celui visé au sous-alinéa e)(i) ou (ii) — , sur la base des éléments mentionnés à l'article 97 et, d'autre part
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada,
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada;
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu'il constitue pour la sécurité du Canada;
[26] Sections 96 and 97 set out the requirements which must be met to be, respectively, a Convention refugee or a person in need of protection. Section 98 provides that a person referred to in Article 1E or 1F of the Refugee Convention is not a Convention refugee or a person in need of protection. For present purposes, the relevant Article is 1F(a) which states that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering the person has committed, among other things, a crime against humanity.
[27] Therefore, the effect of s. 113(c) is that an applicant not described in s. 112(3) receives consideration as a Convention refugee under s. 96 and a person in need of protection under s. 97, unless excluded as a result of the PRRA officer’s consideration of s. 98. However, an applicant who is described in s. 112(3) receives consideration only on the basis of the factors set out in s. 97. The Applicants argue that this is a significant difference for the following reasons:
A. An assessment under s. 97 is limited to risks of death, torture and cruel and unusual treatment and does not extend to persecution as does an assessment under s. 96;
B. The standard of proof is higher under s. 97 than under s. 96, as s. 97 requires demonstration that harm is more likely than not to occur, as opposed to the requirement to show only more than a mere possibility of persecution under s. 96 (see Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, at paras 11-12, 39);
C. Section 96 affords protection against generalized risks, as long as there is a nexus to one of the Convention grounds of persecution, while s. 97 requires a personalized risk (see Fi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1125, at para 16).
[28] Furthermore, the effect of s. 113(d)(ii) is that even a positive s. 97 risk assessment is not sufficient to warrant protection, in that the assessment is then balanced against the nature and severity of acts committed by the applicant and public security considerations to determine if protection is warranted. Even if the decision is made to allow the application for protection, the effect of s. 114 is that the applicant receives a stay of removal rather than refugee protection:
114 (1) A decision to allow the application for protection has
(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and
114 (1) La décision accordant la demande de protection a pour effet de conférer l'asile au demandeur; toutefois, elle a pour effet, s'agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant.
(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.
[Blank / En blanc]
[29] The Applicants object to the adverse consequences of being persons described under s. 112(3). Given that the RPD’s rejection of their refugee claim, as a result of exclusion under s. 98 and Article 1F of the Refugee Convention, employed pre-Ezokola jurisprudence as the test for complicity, the Applicants argue that the Officer should have reconsidered their exclusion as part of their PRRA.
D. Do Canada’s international legal obligations, s. 7 of the Charter, and the correct interpretation of s. 112(3) of the IRPA require an unrestricted PRRA on the facts of this case? (1) PRRA Officer’s Jurisdiction to Determine Constitutional Questions [30] As a preliminary point, I note that the Officer relied on the decision of Justice Russell in Singh v Canada (Solicitor General), 2004 FC 288, in concluding that PRRA officers do not have jurisdiction to determine constitutional questions. In a footnote in the Applicant’s written submissions, they noted that the Officer made no mention of recent pronouncements by the Supreme Court of Canada on this issue. However, there was no argument before me on the reasonableness of this jurisdictional conclusion by the Officer. In the absence of submissions on this jurisdictional issue and argument on applicable jurisprudence, my decision does not address this issue. Rather, recognizing the importance of the outcome of an administrative decision in conducting judicial review of that decision (see Dunsmuir, at paragraph 47), my decision turns on the parties’ arguments surrounding the substantive issue of the interpretation of s. 112(3) of the IRPA.
(2) Canada’s International Legal Obligations [31] The Applicants argue that Canada’s international obligations under the Refugee Convention must inform the interpretation of the domestic statutory regime under the IRPA, and s. 112(3) in particular. They rely upon the principle of non-refoulement (the protection against deportation to persecution), enshrined in Article 33 of the Refugee Convention, which prohibits contracting states from returning a refugee to territories where the refugee’s life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.
[32] It is clear from the Convention that non-refoulement does not apply to claimants who are excluded by Article 1F. Therefore, the IRPA does not conflict with this principle to the extent that it permits removal of such claimants. The more nuanced question raised by the Applicants is whether Canada’s obligations under the Refugee Convention mandate a re-examination of a previous exclusion finding contemporaneous with any intended removal, particularly in the context of a change in applicable jurisprudence.
[33] The Applicants rely on the principle described in Nemeth v Canada (Justice), [2010] 3 SCR 281, at paragraph 50, that under the Refugee Convention refugee status depends on the circumstances at the time the inquiry is made, such that formal findings of refugee status do not have binding effect. They argue that this principle supports their position that, when refugee protection is sought, the decision-maker must make a contemporaneous assessment of whether the claimant meets the definition of a refugee, including an assessment of possible exclusion under Article 1F.
[34] As support for their position in the specific context of exclusion findings, the Applicants refer to a publication of the United Nations High Commission for Refugees [UNHCR], entitled Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugee dated September 4, 2003 [Background Note]. This document states that there may be occasions when information comes to light after the exclusion of an individual which casts doubt on the applicability of the exclusion clauses. In these cases the exclusion decision should be reconsidered and refugee status recognized if appropriate. The Respondent argues that this Background Note does not form part of the Refugee Convention and that it cannot be characterized as descriptive of Canada’s obligations under the Convention.
[35] UNHCR publications of this sort can be useful guidance for interpreting Convention provisions, but they are not law and are not determinative of such interpretation (see Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, at para 17; Febles FCA, at para 50). Moreover, the Background Note refers to the requirement for reconsideration of the exclusion decision when “information comes to light which casts doubt on the applicability of the exclusion clauses”. The Background Note does not itself require, at least not explicitly, reconsideration based on a change in the applicable jurisprudence. The Court has not been provided with clear authority that Canada’s international obligations include a requirement for reconsideration based on evolution of jurisprudence. In the absence of such authority, I cannot conclude that such a requirement applies.
[36] Regardless, even if I were to find that the Refugee Convention does include such a requirement, my conclusion is that, taking into account the applicable principles of statutory interpretation, the relevant provisions of the IRPA are not capable of being interpreted as implementing this requirement. The Applicants rely on the presumption that domestic legislation conforms with international obligations and the express interpretive provision in s. 3(3)(f) of the IRPA. This section states that the IRPA is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. The Federal Court of Appeal in de Guzman v Canada (Minister of Citizenship and Immigration), 2005 FCA 436, at paras 82, 83 and 87, considered s. 3(3)(f) and held that the IRPA must be interpreted and applied consistently with such instruments unless, in the modern approach to statutory interpretation, this is impossible. This interpretive approach would apply even in the absence of s.3(3)(f), as courts must strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result (see R. v Hape, 2007 SCC 26, at para 53).
[37] I accept the Applicants’ articulation of the relevant interpretive principles and do not understand the Respondent to take issue with them. However, the difficulty with the Applicants’ proposed interpretation of s. 112(3), read in combination with ss. 113(c) and (d), is its lack of support in the language of these sections.
[38] The Applicants reference both ss. 112(3)(a) and (c) in their arguments, although s. 112(3)(c) is the most relevant to this analysis. That is the section applicable to an exclusion finding by the RPD, which was the finding on which the PRRA Officer’s decision turned. Section 112(3)(c) describes an applicant who “made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention”. The use of the past tense verbs “made” and “was rejected” indicates that this provision relates to a claim that was previously made and adjudicated. I cannot identify a viable construction of s. 112(3)(c) that would permit a PRRA officer to conclude that this section does not apply to a refugee claimant who was previously excluded by the RPD under Article 1F.
[39] The Applicants submit that this construction is available by interpreting the words “on the basis of section F of Article 1 of the Refugee Convention” as referring only to exclusion determinations properly made. They argue that an erroneous exclusion (as they would characterize the pre-Ezokola determination by the RPD) is not captured by the language of s. 112(3)(c), as it was not made on the basis of the Convention.
[40] I cannot accept this as an available interpretation of s. 112(3)(c). Such an interpretation would represent a requirement for a PRRA officer, if so requested, to review every previous exclusion finding to assess whether or not it is erroneous. I consider such an interpretation to be the opposite of the legislature’s intention, based on the plain and ordinary meaning of the words used in ss. 112(3)(c) and 113(c) and (d), which is to preclude assessment of exclusion where an exclusion finding has previously been made.
[41] The Applicants also note that s. 112(3)(a) is written in the present tense, referring to an applicant who “…is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality”. They argue that this supports their interpretation that the PRRA officer must conduct a contemporaneous assessment of inadmissibility, even if a prior finding of inadmissibility has been made. They submit that ss. 112(3)(a) and (c) should be interpreted consistently, such that s.112(3)(c) also requires a contemporaneous assessment.
[42] However, the Applicants acknowledge that the language of s. 112(3)(a) is potentially ambiguous as to the timing of the assessment. Given that s. 112(3)(c) clearly references a past assessment, my conclusion is that the Applicants’ argument in favour of consistent interpretations of ss. 112(3)(a) and (c) does not support their position. Rather, it supports the conclusion that a PRRA officer is limited to considering s. 97 if the applicant has previously been the subject of an exclusion or inadmissibility finding.
[43] Accordingly, even if I were to accept the Applicants’ argument, that the principle of non-refoulement requires contemporaneous re-examination of previous exclusion findings following a change in jurisprudence, I would find that it is not possible to interpret the relevant IRPA provisions to conform with that aspect of the principle. I therefore find that the Applicants’ arguments based on the provisions of the Refugee Convention do not support their proposed interpretation of s. 112(3).
(3) Section 7 of the Charter [44] The Applicants argue that s.7 of the Charter requires that their interpretation of s. 112(3) of the IRPA be accepted. Their position is that removal to a risk of persecution engages s. 7 rights and is therefore permissible only if the exposure to such risk is consistent with the principles of fundamental justice. The Applicants submit that their removal, without a contemporaneous assessment of their exclusion from refugee protection, violates such principles, two of which they raise for the Court’s consideration.
[45] First, the Applicants submit that the principle of non-refoulement meets the criteria for recognition as a principle of fundamental justice, as set out in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCR 4, at para 8. The Supreme Court of Canada determined that a principle of fundamental justice must be a legal principle, with sufficient consensus that it is vital or fundamental to our societal notion of justice, and that it must be capable of being identified with precision and applied in a manner that yields predictable results.
[46] Second, the Applicants rely on the protection against arbitrariness as a recognized principle of fundamental justice (see Carter v Canada (Attorney General), 2015 SCC 5, at para 83). This principle requires a rational connection between the object of a law and the limit it imposes on life, liberty or security of the person. The Applicants submit that there is no rational connection between denying refugee protection to those who have committed international crimes (the object of the law in question) and the limit imposed on the Applicants’ liberty and security, because there is no substantive basis for excluding them from refugee protection.
[47] The Applicants take the position that the application of s. 7 of the Charter, in the context of these principles of fundamental justice, requires that s. 112(3) be interpreted as they advocate, i.e. as requiring a contemporaneous assessment of their exclusion before they can be removed without having their risk assessed under s. 96 of the IRPA.
[48] Turning to the principles of statutory interpretation relevant to this argument, the Applicants note the explanation by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, at paragraph 62. The Court explained that statutory interpretation which promotes Charter principles and values is only applicable in circumstances of genuine ambiguity, i.e. where a statutory provision is subject to differing, but equally plausible, interpretations. However, the Applicants argue that this limit on the application of the Charter as an interpretive tool is overridden in the present case by the effect of s. 3(3)(d) of the IRPA, which states that the statute is to be construed and applied in a manner that ensures that decisions taken thereunder are consistent with the Charter. The Applicants’ position is that, regardless of whether the provision under review is ambiguous, the IRPA must be interpreted and applied in a manner that ensures conformity with the Charter.
[49] The difficulty with the Applicants’ position is the same as identified in the above analysis of the interpretive effect of the Refugee Convention. While arguing that an ambiguity is unnecessary, the Applicants submit that s. 112(3)(c) does contain a latent ambiguity, as to whether an erroneous exclusion can be considered to have been made “on the basis of” the Convention. However, my analysis as set out previously in these Reasons applies equally to the Applicants’ arguments on the interpretive effect of the Charter. I find not only that s. 112(3)(c) is not ambiguous as submitted by the Applicants but that, particularly when considered in context with s. 113, it is not capable of bearing the Applicants’ proposed interpretation. This analysis applies regardless of whether the Applicants are correct in their submission that s.3(3)(d) of the IRPA eliminates the need to demonstrate an ambiguity in the statutory language before one can have recourse to Charter values and principles in interpreting the statute. I do not understand the Applicants to be arguing that the effect of the Charter is to permit an interpretation that the statutory wording is incapable of bearing.
[50] I also consider the Respondent’s position, that the Charter does not require the interpretation argued by the Applicants, to be consistent with recent guidance from the Supreme Court of Canada. The Supreme Court has confirmed in B010 SCC, at paragraph 75, that s.7 of the Charter is typically engaged at the PRRA stage of IRPA’s refugee protection process, not at the stage of determining admissibility or exclusion. The Supreme Court referred to its decision in Febles SCC that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place”. The full explanation from the Supreme Court in Febles SCC is set out as follows at paragraphs 67 to 68:
[67] There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA. Where Parliament’s intent for a statutory provision is clear and there is no ambiguity, the Charter cannot be used as an interpretive tool to give the legislation a meaning which Parliament did not intend: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 61-62. Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter . As stated at para. 10 of these reasons, even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed (s. 113 (d) of the IRPA). Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where Charter -protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 58.
[68] While the appellant would prefer to be granted refugee protection than have to apply for a stay of removal, the Charter does not give a positive right to refugee protection. The appellant is excluded from refugee protection as a result of his commission of serious non-political crimes. If removal of the appellant to Cuba jeopardizes his Charter rights, his recourse is to seek a stay of removal, as discussed earlier.
(Emphasis added.)
[51] The Federal Court of Appeal’s analysis is expressed in similar terms in paragraphs 68 to 69 of Febles FCA:
[68] If an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.
[69] Applying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.
(Emphasis added.)
[52] I interpret these decisions to support the Respondent’s position, that s. 7 rights can be protected through the availability of a s. 97 assessment and the potential for a resulting stay of removal under s. 114(1)(d). The protection of s. 7 rights does not require that an applicant be afforded access to the process or the substance of an application for a grant of refugee protection, or the rights associated with this status. I therefore reject the Applicants’ arguments that, on the facts of their case, s.7 mandates that s.112(3) of the IRPA be interpreted as requiring reconsideration of the Applicants’ exclusion under s. 98 and potential recourse to an assessment under s. 96.
(4) Res Judicata / Issue Estoppel [53] The parties’ submissions addressed Canadian jurisprudence applicable to res judicata and issue estoppel in the context of a change in law. Those submissions focused in particular on the recent decision of the Federal Court of Appeal in Oberlander v Canada (Attorney General), 2016 FCA 52 [Oberlander], which considered this subject in the specific context of the change in the test for complicity resulting from the Ezokola decision. The appellant in that case was the subject of a pre-Ezokola complicity finding by the Governor in Council in a citizenship revocation proceeding, related to war crimes committed during World War II. The complicity finding was upheld by both the Federal Court and the Federal Court of Appeal, but the citizenship revocation decision was returned to the Governor in Council for consideration of the issue of duress. The Governor in Council concluded that duress had not been established and again revoked the appellant’s citizenship. The appellant again applied for judicial review and, following the intervening jurisprudential development in Ezokola, sought to have the complicity issue re-determined.
[54] The Federal Court considered whether issue estoppel precluded re-litigation