Kreishan v. Canada (Citizenship and Immigration)

Kreishan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2019-08-19
Neutral citation
2019 FCA 223
File numbers
A-153-18
Notes
Reported Decision
Decision Content
Date: 20190819
Docket: A-153-18
Citation: 2019 FCA 223
CORAM:
WEBB J.A.
RENNIE J.A.
LASKIN J.A.
BETWEEN:
REEM YOUSEF SAEED KREISHAN
GIOVANI ACEVEDO ARANGO (AKA GIOVANNI ACEVEDO ARANGO)
CRISTIAN CAMILO ACEVEDO GOMEZ
MOHAMMED ZAKIR HOSSAIN
SUAD SULIEMAN ODEH ABU SHABAB
ABDALLA MAHMOUD ABOUSHABAB
MAHA MAHMOUD MOHAMED OUDAH
ALY MAHMOUD MOHAMED OUDAH
MOHAMED MAHMOUD OUDAH
TAGI MAHMOUD MOHAMED ABOSHABAB
HUDA MARWAN KASHTEM
MHD NAZIR DEIRANI
BARA’A DERANI
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on October 2, 2018.
Judgment delivered at Ottawa, Ontario, on August 19, 2019.
REASONS FOR JUDGMENT BY:
RENNIE J.A.
CONCURRED IN BY:
WEBB J.A.
LASKIN J.A.
Date: 20190819
Docket: A-153-18
Citation: 2019 FCA 223
CORAM:
WEBB J.A.
RENNIE J.A.
LASKIN J.A.
BETWEEN:
REEM YOUSEF SAEED KREISHAN
GIOVANI ACEVEDO ARANGO (AKA GIOVANNI ACEVEDO ARANGO)
CRISTIAN CAMILO ACEVEDO GOMEZ
MOHAMMED ZAKIR HOSSAIN
SUAD SULIEMAN ODEH ABU SHABAB
ABDALLA MAHMOUD ABOUSHABAB
MAHA MAHMOUD MOHAMED OUDAH
ALY MAHMOUD MOHAMED OUDAH
MOHAMED MAHMOUD OUDAH
TAGI MAHMOUD MOHAMED ABOSHABAB
HUDA MARWAN KASHTEM
MHD NAZIR DEIRANI
BARA’A DERANI
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Table of Contents
Para. No.
I. Overview
1
II. The refugee determination process
18
A. Legislative history of the RAD bar
28
B. Purpose and powers of the RAD
41
III. Notice of constitutional question
48
IV. Standard of review
56
V. The Federal Court decision and the appellants’ arguments on appeal
57
VI. Analysis
64
A. Preliminary observations
64
B. Section 7 – General principles
78
C. Engagement
88
(a) Psychological harm
93
(b) Nature of the process
101
(i) Refoulement and Risk
104
(ii) Supreme Court jurisprudence and its implications
110
(c) Increased risk of refoulement
128
(d) Positive rights and section 7
135
VII. Conclusion
142
RENNIE J.A.
I. Overview
[1] Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping (see Stephen H. Legomsky, “Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection” (2003) 15:4 I.J.R.L. 567 at 568-71). In the context of individual claims for protection, the failure to claim protection in the first safe country of arrival may also bear on the credibility of the claimant (Nadesan v. Canada (Citizenship and Immigration), 2015 FC 104 at para. 11; Ayala Sosa v. Canada (Citizenship and Immigration), 2014 FC 428 at para. 34).
[2] Parliament has legislated the safe third country concept into Canadian law. Subsection 102(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) empowers the Governor in Council to designate countries that comply with international standards relating to the treatment of refugees as safe third countries. Refugee claimants coming to Canada from a designated safe third country cannot have their asylum claims determined here (IRPA, s. 101(1)(e)).
[3] To date the United States of America is the only country designated as a safe third country (Immigration and Refugee Protection Regulations (SOR/2002-227), s. 159.3 (IRPA Regulations)). Following that designation, the United States and Canada signed 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” (STCA)). The STCA came into effect on December 29, 2004.
[4] The preamble to the STCA states that its objectives include the orderly handling of asylum applications, enhanced burden sharing and cooperation between Canada and the United States, and the avoidance of direct or indirect breaches of the principle of non-refoulement. The preamble recognizes the legal obligations of Canada and the United States under the principle of non-refoulement, set out in the 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (Convention) and the 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267. The principle of non-refoulement prohibits the removal of refugees to a territory where they are at risk of human rights violations, and has been described as the cornerstone of the international refugee protection regime (Németh v. Canada (Justice), 2010 SCC 56 at paras. 18-19, [2010] 3 S.C.R. 281 (Németh)).
[5] Under the STCA, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection here. Responsibility over their claim falls to the United States, it being the first “safe country” in which they arrived. Claimants arriving from the United States are returned to the United States at the Canadian border and directed to make their claim for asylum there. I note, parenthetically, that claimants arriving in Canada otherwise than at a land border port of entry (e.g., via an irregular border crossing or by air) are exempt from the STCA. Their claims for protection are assessed in the same manner as those of refugee claimants arriving from other countries.
[6] However, Canada retains responsibility for determining the refugee status of claimants arriving from the United States who have family members in Canada or who are unaccompanied minors. These claimants enter Canada and have their refugee status determined by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) (IRPA Regulations, s. 159.5). This appeal concerns those claimants – who I will refer to as “STCA-excepted claimants” – and the refugee determination process available to them in Canada.
[7] If an STCA-excepted claimant’s application for asylum is rejected by the RPD, recourse lies in an application for leave and judicial review of the RPD decision in the Federal Court (IRPA, s. 72). Other failed claimants, however, have a right of appeal to the Refugee Appeal Division (RAD), accompanied by a statutory stay of removal. The unavailability of a right of appeal and stay pending its disposition for STCA-excepted claimants lies at the heart of this appeal.
[8] The appellants are STCA-excepted asylum seekers whose claims were rejected by the RPD. They are Bangladeshi, Colombian, Jordanian and Syrian citizens and stateless Palestinians who, after transiting through the United States, presented claims for protection at a Canadian land border port of entry. Asserting that they had family members in Canada, they were allowed into Canada to advance their claims before the RPD.
[9] The appellants’ claims were heard and rejected by the RPD. They appealed the negative RPD decisions to the RAD. The RAD dismissed the appeals on jurisdictional grounds, as under paragraph 110(2)(d) of the IRPA the appellants had no right of appeal.
[10] All of the appellants – except Ms. Kreishan – received leave to judicially review the RPD decisions dismissing their claims. These challenges were resolved in favour of the appellants, with the exception of that of Mr. Hossain, who was unsuccessful in his motion for a stay of removal, and was deported to Bangladesh.
[11] The appellants also launched parallel applications in the Federal Court for leave to judicially review the RAD’s dismissals of their appeals.
[12] In the appellants’ challenges to the RAD decisions, leave was granted and the applications were consolidated. The appellants contended before the Federal Court that the denial of a right of appeal to the RAD contained in paragraph 110(2)(d) of the IRPA – “the RAD bar” – infringed section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (Charter). The appellants argued that their section 7 interests were engaged by the risk of refoulement at the end of the refugee determination process, the enhanced likelihood of refoulement for STCA-excepted claimants relative to those with access to the RAD and the psychological stress associated with the absence of a right of appeal. They further argued that the substantive protections of section 7 were violated by the RAD bar on the basis that it is arbitrary and overbroad in relation to its purpose, with grossly disproportionate effect, and that this infringement is not saved by section 1 of the Charter.
[13] These arguments were dismissed by the Federal Court (Kreishan v. Canada (Citizenship and Immigration), 2018 FC 481, per Heneghan J. (Kreishan)), and have been advanced again on appeal.
[14] I approach the appellants’ arguments from the threshold proposition that determining whether a statutory provision is compliant with section 7 of the Charter is a contextual exercise (see Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 at para. 71, [2000] 2 S.C.R. 519 (and cases cited therein); Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at para. 20, [2007] 1 S.C.R. 350 (Charkaoui); Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at p. 732 (Chiarelli); British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at 7-8). This caution has particular resonance when considering the IRPA, which provides for different streams of refugee claimants and different levels and types of review, that together form an integrated refugee determination system. Within this system there are elements of administrative, quasi-judicial, judicial and ministerial discretion which provide recourse to refugee claimants, at times sequentially, and at times concurrently. It is a process for the determination of refugee claims, and for that reason, it is imperative to situate the RAD bar under paragraph 110(2)(d) in the context of that process. This is particularly so where the argument, as it is here, is that the denial of a right to appeal violates both procedural and substantive principles of fundamental justice.
[15] The appellants’ argument is ultimately predicated on the difference in treatment between different streams of asylum claimants. For that reason, any analysis requires an understanding of the process governing the adjudication of the claims of what I will call “regular claimants” – those arriving to Canada otherwise than at a land border port of entry from the United States. I will then identify how, in that process, the treatment of STCA-excepted claimants differs from that of regular claimants, followed by a review of the purpose and powers of the RAD, the appellate body to which the appellants are denied access.
[16] Thereafter, and with the benefit of that context, I will turn to the appellants’ section 7 arguments. My analysis will address the jurisprudence of the Supreme Court of Canada on section 7 in its substantive and procedural aspects and its intersection with psychological harm and the risk of refoulement, to determine whether the RAD bar engages the appellants’ section 7 rights.
[17] For the reasons which follow, I have concluded that paragraph 110(2)(d) of the IRPA does not engage section 7.
II. The refugee determination process
[18] If regular refugee claimants are unsuccessful before the RPD, they may appeal to the RAD. If their appeal is unsuccessful, further recourse lies in an application for leave to commence judicial review in the Federal Court. Leave will be granted where a “fairly arguable case” is disclosed (Bains v. Canada (Minister of Employment and Immigration) (1990), 47 Admin. L.R. 317; 109 N.R. 239 (F.C.A.)).
[19] If the failed claimant is unsuccessful in their application to obtain leave to commence judicial review of the RAD decision, or alternatively, if leave is granted but the RAD decision is maintained by the Federal Court, they may, with certain exceptions, apply for a pre-removal risk assessment (PRRA). If unsuccessful before the PRRA officer, that is to say the PRRA officer concludes that there is no new evidence of risk or a change in country conditions since the RPD decision, the claimant may bring an application for leave to commence a judicial review application of the PRRA officer’s decision.
[20] Regular claimants whose claims for protection are rejected by the RPD have an automatic stay of removal pending the disposition of their appeal and leave application (IRPA Regulations, s. 231(1)).
[21] If unsuccessful before the PRRA officer, a failed claimant will receive a Notice to Report to a removals officer to make arrangements for removal from Canada. Faced with a Notice to Report, a failed claimant may request a deferral of removal. The decision of a removals officer not to defer removal is a decision or order within the scope of section 2 of the Federal Courts Act, R.S.C., 1985, c. F-7, and can be the basis for a further application for leave to commence judicial review in the Federal Court. It is usually accompanied by a motion for a stay of the removal order pending disposition of the application for leave to commence judicial review.
[22] Parallel to these proceedings, or in practice, contemporaneous with a request that the removal order be deferred, a claimant may apply under section 25.1 of the IRPA, requesting that the Minister dispense with compliance of provisions of the Act or Regulations on humanitarian and compassionate grounds. A claimant may bring a further application for leave to commence judicial review of a refusal of a section 25.1 application, and concurrently seek a stay from the Federal Court pending disposition of the leave application (see Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 for consideration of the scope of the discretion under this section).
[23] There are points of both convergence and divergence in the process applicable to regular claimants and STCA-excepted claimants. Identification of these points brings the appellants’ argument that section 7 is engaged into sharper relief.
[24] First, the merits of all claims for protection of all claimants, regardless of how they entered Canada, are assessed in substantively the same manner. Where, as here, the determination of refugee status involves an issue of credibility, the claimant is entitled to an oral hearing before an independent and impartial decision maker – the RPD. That is the teaching of Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 (Singh). I am, of course, leaving aside special cases that are not pertinent here, such as those that are excluded from the refugee determination process entirely by Article 1F of the 1951 Convention and section 98 of the IRPA (see Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431 (Febles).
[25] The second observation is that STCA-excepted claimants such as the appellants do not have access to a statutory stay of removal pending an application for leave to judicially review a negative RPD decision (IRPA Regulations, s. 231(1)). They must seek a stay in the Federal Court pending disposition of the application for leave, and if leave is granted, pending disposition of the application for judicial review on the merits. This requirement underpins the appellants’ argument of psychological stress and anxiety. Unlike regular claimants who have the certainty of a legislative stay pending their appeal to the RAD and subsequent application for leave to apply for judicial review of a RAD decision, the appellants have no such certainty and are forced to seek a stay from the Federal Court.
[26] The third observation is that following a negative RPD decision (in the case of an STCA-excepted claimant) or dismissal of an application for leave to commence judicial review of a negative RAD ruling (in the case of a regular claimant), the streams of failed claimants merge. From that point on there are no distinctions. Failed claimants, regardless of the country of origin, may follow the same path – request for a PRRA, request for deferral of removal, a section 25.1 application, each with their associated leave and stay applications. There are circumstances when claims for protection have been rejected under which both STCA-excepted claimants and regular claimants may not receive a PRRA. Paragraph 112(2)(b.1), for example, precludes all failed claimants, regardless of which stream they are in, from applying for a PRRA until twelve months have passed since the rejection of their claim for refugee protection.
[27] The fourth observation is that the appellants are not the only category of claimants for whom there is no right of appeal. Decisions to allow or reject a claim for refugee protection by a designated foreign national (IRPA, s. 110(2)(a)), and decisions rejecting claims for refugee protection with no credible basis or that are manifestly unfounded (IRPA, s. 110(2)(c)) may not be appealed. As noted earlier, some claimants have no access whatsoever to the refugee determination process (s. 98 of the IRPA and Article 1F of the Convention).
A. Legislative history of the RAD bar
[28] The appellants’ argument is that the availability of a right of appeal for some, but not all claimants, renders their pathway through the refugee determination process unconstitutional. As in all cases where the constitutionality of a statutory provision is challenged, context is critical, and for that reason I turn to the legislative origins, purposes and powers of the RAD.
[29] I begin with the legislative history.
[30] Under the Immigration Act, R.S.C. 1985, c. I-2, which preceded the IRPA, refugee claims were decided by two members of the Convention Refugee Determination Division of the IRB. If either member decided in the claimant’s favour, protection was granted. Unsuccessful claimants could make an application for leave for judicial review in the Federal Court. There was no appeal, to any tribunal.
[31] In 2001, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger (now the IRPA), was introduced in Parliament (Bill C-11). Under its scheme, refugee claims would be determined by a single-member panel of the RPD with a right of appeal to a newly established appellate tribunal (the RAD).
[32] Bill C-11 received Royal Assent in November 2001, with its provisions to come into force on days to be fixed by order of the Governor in Council. However, in April 2002, the Minister of Citizenship and Immigration announced that the implementation of the RAD would be delayed due to “pressures on the system” (CIC Press Release, “Refugee Appeal Division Implementation Delayed,” 29 April 2002). As a result, following the coming into force of many of the IRPA’s provisions in June 2002 (Order Fixing June 28, 2002 as the Date of the Coming into Force of Certain Provisions of the Act, SI/2002-97), refugee claims were heard by a single member of the RPD. In the absence of the RAD, section 231 of the Regulations — which also came into force in June 2002 — provided for a statutory stay of removal where leave to judicially review a negative RPD decision was sought.
[33] In 2010, the Balanced Refugee Reform Act, S.C. 2010, c. 8 (BRRA), was passed by Parliament. The BRRA provided that the IRPA’s RAD provisions would come into force within two years of Royal Assent. The BRRA received Royal Assent in June of that year.
[34] Two years later, in June 2012, Bill C-31, Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 (PCISA), also received Royal Assent. The PCISA added certain restrictions on the right of appeal to the RAD. The bill’s summary states that the IRPA was to be amended to “provide for the expediting of the processing of refugee protection claims”.
[35] Of importance for the purposes of this appeal, section 110 of the IRPA, which established the RAD, was amended by the PCISA to include paragraph 110(2)(d). This paragraph, which is the target of the declaration of unconstitutionality, provides that no appeal to the RAD is available for STCA-excepted claimants:
Restriction on appeals
Restriction
110(2) No appeal may be made in respect of any of the following:
110(2) Ne sont pas susceptibles d’appel :
[…]
…
(d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if
d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois :
(i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and
(i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d),
(ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division;
(ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c);
[36] The Regulations were also amended in 2012 (SOR/2012-272) to account for the implementation of the RAD. Subsection 231(1) of the Regulations, under which a removal order was stayed where a failed RPD claimant sought leave to file an application for judicial review of an RPD decision, was amended to limit the statutory stay to an application for judicial review of a RAD decision. In practical terms, this meant that there was no automatic stay of removal for failed STCA-excepted applicants, such as the appellants, who did not have recourse to the RAD.
[37] The Regulatory Impact Analysis Statement to SOR/2012-272 stated that the amendment to subsection 231(1) of the Regulations was intended to ensure that STCA-excepted claimants would not be eligible for an automatic stay of removal if they sought leave to judicially review a negative RPD decision. This would “support the Government’s goals of expedited processing and removal of certain classes of failed claimants.”
[38] To summarize, during the 10-year period between the coming into force of the IRPA in 2002 and the implementation of the RAD in June of 2012 under the BRRA, all claimants, regardless of whether they transited through a safe country, had their claims determined by a single member of the RPD. All claimants could bring applications to the Federal Court for leave to judicially review the RPD decision and a stay of removal pending disposition of the leave application. At no time was the RAD operational without the restrictions on appeal under subsection 110(2); put otherwise, persons in the position of the claimants, as failed STCA-excepted claimants, never had access to the RAD.
[39] With the advent of the RAD in 2012, most but not all claimants can appeal a negative RPD decision to the RAD. For these failed claimants, removal is deferred pending disposition of both the appeal and the application for leave to commence judicial review (IRPA Regulations, s. 231).
[40] In contrast, STCA-excepted claimants who are unsuccessful before the RPD can bring an application for leave to judicially review the RPD decision. They may, in some cases, request a PRRA and a stay from the Federal Court pending its disposition. Again, should the PRRA be negative, leave to judicially review that decision may be sought. STCA-excepted claimants can also request a deferral of removal from the officer enforcing the removal order and seek leave to judicially review the officer’s decision along with a stay from the Federal Court pending disposition of the leave application.
B. Purpose and powers of the RAD
[41] The legislative purpose behind the RAD’s implementation was discussed in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 F.C.R. 157 (Huruglica). In that case, this Court referred to the 2001 comments of the Minister responsible for Bill C-11, that “[t]he whole purpose [of the RAD] is to ensure that the correct decision is made” (at para. 87), as well as to those of Peter Showler, then Chair of the IRB, who stated that the RAD would “efficiently remedy errors made by the RPD” and act as a “safety net” (at para. 88). After reviewing the legislative history, this Court concluded that “[t]he RAD was essentially viewed as a safety net that would catch all mistakes made by the RPD, be it on the law or the facts” (at para. 98).
[42] The RAD has robust powers of error-correction consistent with its statutory purpose. Unless precluded by the IRPA, an appeal to the RAD from an RPD decision may be made as a matter of right by a failed claimant or by the Minister on questions of law, fact or mixed fact and law.
[43] Appeals before the RAD “must” proceed without a hearing on the basis of the record before the RPD (IRPA, s. 110(3)). New evidence may only be presented if it arose after the rejection of the claim or was not reasonably available at the time of the hearing before the RPD. Where new evidence is admitted, the RAD has the discretion to hold an oral hearing (IRPA, ss. 110(4), 110(6)) provided certain criteria are met. Subsection 110(6) provides:
Appeal to Refugee Appeal Division
Appel devant la Section d’appel des réfugiés
Hearing
Audience
110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
110(6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois :
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause;
(b) that is central to the decision with respect to the refugee protection claim; and
b) sont essentiels pour la prise de la décision relative à la demande d’asile;
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas.
[44] RPD decisions are reviewed by the RAD for correctness (Huruglica at para. 103). The RAD may confirm the RPD determination, set it aside and substitute its own decision, including a grant of refugee protection, or refer the matter back to the RPD with directions (IRPA, s. 111(1)). The RAD does not have the power to order removal and makes no orders to that effect. Removal is an administrative action, taken by departmental officers when a claim has been rejected. The Federal Court, on the other hand, can stay or set aside removal orders.
[45] The appellants contrast the powers of the RAD with the limitations of judicial review of an RPD decision. The critical distinction between an appeal to the RAD and recourse in the Federal Court lies in the standard of review. Correctness before the RAD offers the appellants the hope that a second hearing, albeit on the same record and without oral evidence, will generate a different result. Further, access to the RAD is as of right, whereas access to the Federal Court is dependent on leave (IRPA, s. 72(1)). New evidence is admissible before the RAD provided that the statutory criteria are met. Judicial review in the Federal Court is confined to the record.
[46] Before leaving this point, a caveat. It is important to note that the standard of review by which the Federal Court reviews RPD and RAD decisions does not preclude consideration of the merits or factual findings of either tribunal. Reasonableness and its criteria of justification, intelligibility and transparency, apply to how these tribunals assess the evidence before them and the inferences which may be drawn from that evidence, and correctness applies to the fairness of the procedure of the RPD hearing (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69). Adverse findings of fact and conclusions or inferences with respect to credibility must find their justification in the evidence before the RPD and their expression in the reasons of the RPD.
[47] While there is most certainly a difference in the role of RAD and the Federal Court in reviewing an RPD decision, the gulf is not as wide as contended. The difference lies in correctness review as opposed to reasonableness review. Reasonableness review requires that all elements of an RPD decision satisfy the Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) criteria.
III. Notice of constitutional question
[48] Where the constitutional validity of legislation is in question, subsections 57(1) and (2) of the Federal Courts Act require that a notice of constitutional question be served on the Attorney General of Canada and on the provincial and territorial Attorneys General at least ten days before the hearing of the appeal:
Constitutional questions
Questions constitutionnelles
57 (1) If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
57 (1) Les lois fédérales ou provinciales ou leurs textes d’application, dont la validité, l’applicabilité ou l’effet, sur le plan constitutionnel, est en cause devant la Cour d’appel fédérale ou la Cour fédérale ou un office fédéral, sauf s’il s’agit d’un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n’aient été avisés conformément au paragraphe (2).
Time of notice
Formule et délai de l’avis
(2) The notice must be served at least 10 days before the day on which the constitutional question is to be argued, unless the Federal Court of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, orders otherwise.
(2) L’avis est, sauf ordonnance contraire de la Cour d’appel fédérale ou de la Cour fédérale ou de l’office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l’objet doit être débattue.
[49] In this case, the appellants filed a notice of constitutional question on September 25, 2018, with an accompanying solicitor’s certificate stating that the notice had been served on the Attorneys General on September 24, 2018, less than ten days prior to the hearing of the appeal. The parties were directed to address the implications of late service in their oral submissions.
[50] At the outset of the hearing of this appeal, counsel for the appellants advised that six of the provincial and territorial Attorneys General had indicated no intention to intervene in the appeal and that it was anticipated that none of the remaining Attorneys General would respond differently. Counsel submitted that this Court had the discretion under subsection 57(2) of the Federal Courts Act to abridge the time for service and hear the appeal as scheduled, as the Federal Court had done in Tapambwa v. Canada (Citizenship and Immigration), 2017 FC 522, [2017] 4 F.C.R. 458 and Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156, [2015] 4 F.C.R. 297, by applying the factors set out in Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184 (Larkman) relating to requests for extensions of time.
[51] Counsel for the Attorney General of Canada agreed that the Larkman factors were satisfied in this case and consented to the hearing of the appeal as scheduled. Both counsel submitted that the importance of the legal question at issue, as well as the large number of cases in abeyance at the Federal Court pending the outcome of this appeal, weighed in favour of granting an abridgment of time for service.
[52] After considering the parties’ submissions, the Court decided to hear the appeal on a conditional basis. The parties were advised that if any of the remaining provincial or territorial Attorneys General sought leave to intervene it was possible that the appeal would need to be reheard, depending on the nature of the intervention sought. The appeal proceeded on that basis. Following the hearing of the appeal, the appellants advised the Court that they had received replies from all thirteen provincial and territorial Attorneys General and that none had expressed an intention to intervene in the appeal and either consented to, did not oppose, or expressly declined to take a position on the appellants’ request for an abridgement of the time for service of the notice.
[53] As a result of the responses from the Attorneys General, I would grant the appellants’ request for an abridgement of the time for service. However, in doing so I stress that the notice requirement in section 57 of the Federal Courts Act is not a mere formality. In this case, the Court exercised its discretion to hear the appeal on a conditional basis, taking into account the parties’ submissions and the consent of the Attorney General of Canada. This decision was not lightly made and similar results should not be expected in future cases.
[54] Further, I do not agree that the Larkman factors are dispositive. Those factors are designed to address the interests of and potential prejudice to the parties to a proceeding. The notice of constitutional question, by contrast, has a public dimension. It ensures that a law is not declared unconstitutional unless the fullest opportunity has been given to the government to support the law’s validity (Guindon v. Canada, 2015 SCC 41 at para. 19, [2015] 3 S.C.R. 3, citing Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 48). As a result, it is the potential for prejudice to that public interest that is paramount.
[55] The fact that immigration is a head of exclusive federal legislative competence does not mean that the provinces are unlikely to have an interest. Provincial Attorneys General may have no great stake in whether paragraph 110(2)(d) of the IRPA survives Charter scrutiny, but this is irrelevant for the purposes of considering whether the time for service of the notice should be abridged. The interest of the Attorneys General is in the evolution of section 7 jurisprudence and the implications of a decision in a particular case to analogous matters within provincial legislative competence.
IV. Standard of review
[56] The constitutionality of paragraph 110(2)(d) of the IRPA is a question of law. The decision of the Federal Court on this issue attracts appellate review on a standard of correctness (Housen v. Nikolaisen, 2002 SCC 33 at para. 8, [2002] 2 S.C.R. 235). The Federal Court’s evidentiary findings are nonetheless owed deference, including its assessment of the evidence on psychological harm.
V. The Federal Court decision and the appellants’ arguments on appeal
[57] As noted earlier, the Federal Court dismissed the application. The judge observed that “[t]he heart of the applicants’ arguments is not the lack of an appeal but the consequences of that lack.” The appellants identified those consequences as an increased risk of refoulement and the imposition of serious state-imposed psychological stress. The judge assumed, but did not decide, that these consequences engaged the appellants’ section 7 rights (Kreishan at para. 144).
[58] The judge rejected the argument that the RAD bar increased the risk of refoulement. The appellants, in consequence of the RPD decision, were failed claimants. They were not, on the basis of the RPD adjudication, being returned to a country where they would face persecution on Convention grounds. The judge also cited the Supreme Court’s decision in Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176 (Kazemi), for the proposition that section 7 “does not protect against ordinary stress and anxiety” (Kreishan at para. 131) – the inference being that the stress allegedly associated with a denial of access to the RAD was indistinguishable from the stress inherent to the refugee determination process and thus did not meet the threshold of a section 7 interest.
[59] With respect to the second phase of the section 7 analysis, namely whether the deprivation was in accordance with the principles of fundamental justice, the judge found that the legislative objective of the STCA was to regulate the entry of refugee claimants into Canada and the streamlining of the refugee determination process. In that context, the purpose of the bar on appeals to the RAD and the absence of a statutory stay of removal was to reduce incentives which would encourage the making of claims in Canada when claimants had access to protection in the United States. The judge concluded that the RAD bar was not arbitrary, but was rationally connected to the objectives of burden sharing with the United States and limiting the caseload before the RAD. The RAD bar was not overbroad because it promoted the aims of the STCA, namely to encourage claimants to present their claim in their country of first arrival, and aligned with the purposes of the safe third country concept.
[60] In broad terms, the appellants raise three challenges to the decision. They do not quarrel with the judge’s characterization of the issues, rather they contend that the judge erred in law in the analysis of their section 7 interests on the assumption that they were engaged. Without determining the nature and extent to which their rights were engaged, no principled consideration could be given to the question whether the deprivation of those rights was in accordance with the principles of fundamental justice.
[61] Consequently, the appellants say that the judge erred in her analysis of whether the appellants were deprived of their rights in accordance with the principles of fundamental justice. In this regard, they point to the judge’s conclusions as to the legislative purpose of the STCA, arguing that such a broad and amorphous characterization of legislative purpose in the context of section 7 analysis effectively immunizes legislation from constitutional scrutiny. With respect to the overbreadth and the proportionality criteria, they contend that the judge failed to examine the relationship between the objectives of the impugned provisions and the impact on the appellants’ section 7 interests. They also argue that the judge made a palpable and overriding error of fact in concluding that the RAD bar resulted in a reduction of the time required for removal of failed claimants, and that this undermined the rational connection between the measure and the purpose.
[62] The appellants argue that the judge erred in not finding that the preferential treatment given to regular claimants triggered their section 7 interests by increasing the risk of refoulement and amplifying the anxiety and psychological stress associated with prosecuting a claim for protection.
[63] Citing the submissions of the United Nations High Commission for Refugees (UNHCR) to the Parliamentary Committee in its consideration of what became the PCISA, they contend that a second stage appeal for failed claimants is