Canada (Citizenship and Immigration) v. Canadian Council for Refugees

Canada (Citizenship and Immigration) v. Canadian Council for Refugees
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-04-15
Neutral citation
2021 FCA 72
File numbers
A-204-20
Notes
A correction was made on July 6, 2022.
Reported Decision
Decision Content
Date: 20210415
Docket: A-204-20
Citation: 2021 FCA 72
CORAM:
NOËL C.J.
STRATAS J.A.
LASKIN J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellants
and
THE CANADIAN COUNCIL FOR REFUGEES, AMNESTY INTERNATIONAL, THE CANADIAN COUNCIL OF CHURCHES, ABC, DE [BY HER LITIGATION GUARDIAN ABC], AND FG [BY HER LITIGATION GUARDIAN ABC], MOHAMMAD MAJD MAHER HOMSI, HALA MAHER HOMSI, KARAM MAHER HOMSI AND REDA YASSIN AL NAHASS and NEDIRA JEMAL MUSTEFA
Respondents
Heard by online video conference hosted by the Registry on February 23 and 24, 2021.
Judgment delivered at Ottawa, Ontario, on April 15, 2021.
REASONS FOR JUDGMENT BY:
STRATAS J.A.
CONCURRED IN BY:
NOËL C.J.
LASKIN J.A.
Date: 20210415
Docket: A-204-20
Citation: 2021 FCA 72
CORAM:
NOËL C.J.
STRATAS J.A.
LASKIN J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellants
and
THE CANADIAN COUNCIL FOR REFUGEES, AMNESTY INTERNATIONAL, THE CANADIAN COUNCIL OF CHURCHES, ABC, DE [BY HER LITIGATION GUARDIAN ABC], AND FG [BY HER LITIGATION GUARDIAN ABC], MOHAMMAD MAJD MAHER HOMSI, HALA MAHER HOMSI, KARAM MAHER HOMSI AND REDA YASSIN AL NAHASS and NEDIRA JEMAL MUSTEFA
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
[1] The appellants (“Canada”) appeal from the judgment of the Federal Court (per McDonald J.): 2020 FC 770, 448 D.L.R. (4th) 132. The respondents to the appeal (the “Claimants”) cross-appeal. Broadly speaking, the appeal and the cross-appeal concern the constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada. To understand the nature of the appeal and cross-appeal, a brief description of the background is needed.
[2] As a general matter, refugee claimants arriving from a country designated as a safe country under the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the “Regulations”) are ineligible to claim refugee protection in Canada: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), para. 101(1)(e). Since 2004, the United States has been designated: Regulations, s. 159.3. This designation followed an agreement between the United States and Canada, commonly called the Safe Third Country Agreement.
[3] Since that time, many refugee claimants arriving from the United States have been ruled ineligible for refugee protection in Canada. Among these were the individual Claimants. They and certain advocacy organizations for refugees brought three judicial reviews in the Federal Court.
[4] In their applications for judicial review, the Claimants alleged that the designation of the United States under section 159.3 of the Regulations was outside of the authority granted by the Act (i.e., was ultra vires). The Federal Court rejected that allegation.
[5] The Claimants also alleged that the designation of the United States as a safe third country under section 159.3 of the Regulations and the resulting ineligibility of refugee claimants in Canada under paragraph 101(1)(e) of the Act infringed the rights guaranteed by sections 7 and 15 of the 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 and were not justified as a reasonable limit on rights under section 1.
[6] The Federal Court agreed that these two provisions infringed section 7 of the Charter and were not justified under section 1. It declared them of no force or effect under section 52 of the Constitution Act, 1982. Given this conclusion, the Federal Court found it unnecessary to deal with the section 15 issues.
[7] The Federal Court stayed its judgment for six months. This Court granted a further stay until final determination of this appeal: 2020 FCA 181.
[8] In its appeal, Canada focuses on the Federal Court’s finding of unjustifiable infringement of section 7 of the Charter.
[9] In their cross-appeal, the Claimants focus on the Federal Court’s decision not to deal with the issues concerning section 15 of the Charter. They also challenge the Federal Court’s rejection of their ultra vires argument.
[10] For the reasons that follow, I would allow the appeal, dismiss the cross-appeal, set aside the judgment of the Federal Court and dismiss the applications for judicial review.
A. Preliminary issues
(1) Is the cross-appeal improper?
[11] Canada submits that the Claimants’ cross-appeal is improper and should be summarily dismissed.
[12] Canada’s submission is well founded. A cross-appeal lies when a party “seeks a different disposition of the [judgment] appealed from”: Rule 341(1)(b) of the Federal Courts Rules, S.O.R./98-106. “Different disposition” means a remedy that will have real-life, practical consequences for the party cross-appealing. A cross-appeal does not lie simply because a party is dissatisfied with the reasons for judgment: Ratiopharm Inc. v. Pfizer Canada Inc., 2007 FCA 261, 367 N.R. 103 at paras. 6 and 12.
[13] In the Federal Court, two sets of Claimants sought a specific declaration that section 15 of the Charter was infringed. All of the Claimants sought a specific declaration that section 159.3 of the Regulations was ultra vires. The Federal Court did not grant these specific declarations.
[14] But the Federal Court’s failure to grant these declarations does not have any real-life, practical consequences for the Claimants: they wanted the two provisions struck down and they were struck because they infringed section 7. The Claimants take issue with the Federal Court’s reasons, not its judgment. Therefore, I would dismiss the cross-appeal.
(2) Are the section 15 and vires issues properly before this Court?
[15] Canada also submits that the section 15 and vires issues are not properly before this Court.
[16] This Court can hear and determine appeals under the Act when the Federal Court has certified a proper question for its consideration or where one of the narrow common law exceptions applies: s. 74(d). The Federal Court included section 15 in the certified question even though it did not deal with section 15. Because of this, Canada submits that the Federal Court should not have included section 15 in the certified question.
[17] We need not consider this submission. Canada accepts that, aside from the inclusion of section 15, this Court has a proper certified question before it concerning section 7 of the Charter. Once there is a proper certified question before the Court, all issues that might affect the outcome of the appeal, including, here, the section 15 and vires issues, are before the Court: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50 and authorities cited therein. The Claimants can advance any argument to sustain the judgment below: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 621 S.C.R.
[18] As a result, all issues that were before the Federal Court are now before this Court.
B. The Safe Third Country Agreement, the legislative scheme and an administrative policy
(1) Description
[19] In 2002, Canada and the United States entered into an agreement, commonly called the Safe Third Country Agreement, to share responsibility for refugees: 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, United States and Canada, 5 December 2002 (entered into force on December 29, 2004).
[20] Under the Safe Third Country Agreement, refugee claimants must request refugee protection in the first country, Canada or the United States, that they arrive in unless they qualify for an exception. Exceptions include claimants who have family in Canada and unaccompanied minors. The Safe Third Country Agreement also does not apply to those who enter Canada irregularly or to most individuals who arrive by sea or by air.
[21] Thus, those who arrive 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 at a land port of entry. If they do so, Canada can refuse to consider their refugee claim and, if they have no other legal basis for remaining in Canada, return them to the United States.
[22] Like all other international instruments, the Safe Third Country Agreement, by itself, does not have force of law in Canada. It must be implemented by Canadian legislation. That has happened.
[23] The legislative scheme is an interrelated one with many moving parts. It is supplemented by an Order in Council. And beneath it is an administrative policy that tells us how one aspect of this legislative scheme—continual reviews of the designation of a foreign country under subsection 102(3) of the Act—is supposed to work. In describing this legislative scheme, the Court draws in part upon its earlier analysis in Canadian Council for Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136, leave to appeal to SCC refused, 32820 (5 February 2009).
[24] The legislative scheme reflects the philosophy that “where a refugee claimant could have sought protection in another safe country, it is reasonable and appropriate to require the refugee claimant to return and make use of that opportunity”: Regulatory Impact Statement, (2004) C. Gaz II, Vol. 138, No. 22, 1622-1627 at 1622; S.O.R./2004-217, s. 2. By implementing this philosophy, Canada can share with other countries “the responsibility for providing protection to those in need, improve the efficacy of the refugee determination system and restore public confidence in that system” (at 1622).
[25] The legislative scheme begins with subsection 99(3) of the Act. It provides that those who arrive at a port of entry in Canada and intend to claim refugee status must make that claim to an immigration officer. Upon receiving the claim, the officer must determine whether it is eligible to be referred to the Refugee Protection Division for adjudication. One circumstance of ineligibility is where “the claimant came directly or indirectly to Canada from a country designated by the regulations”: para. 101(1)(e) of the Act.
[26] Subsection 102(1) of the Act authorizes the making of regulations designating a country. A country can be designated having regard to four factors.
[27] The first factor is that the country has entered into a safe third country agreement or, in the words of paragraph 102(2)(d) of the Act, “an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection”. In this case, the Safe Third Country Agreement is such an agreement.
[28] Subsection 102(2) of the Act sets out the remaining three factors: “whether the country is a party to the Refugee Convention and to the Convention Against Torture”, the “policies and practices” of the country concerning “claims under the Refugee Convention and…obligations under the Convention Against Torture”, and the “human rights record” of the country.
[29] In 2004, the Governor in Council designated the United States under section 159.3 of the Regulations: S.O.R./2004-217, s. 2. At that time, it concluded that the United States met all four factors for designation under subsection 102(2): Canadian Council for Refugees.
[30] The power to designate a country based on the subsection 102(2) factors includes the power to revoke designation of a country based on those same factors: Interpretation Act, R.S.C. 1985, c. I-21, s. 31(4). Revocation of designation can be achieved by repealing the regulatory provision designating the foreign country (here 159.3 of the Regulations). Revocation of designation might happen if the foreign country enacts new legislation, issues new executive orders, renders new judicial decisions or adopts administrative practices that bring it out of compliance with the subsection 102(2) factors.
[31] Recognizing the possibility of revocation based on non-compliance with the subsection 102(2) factors, Parliament created a mechanism to monitor the designated country’s compliance on an ongoing basis. Subsection 102(3) of the Act provides the mechanism: “continuing review” of the foreign country’s compliance with the four factors.
[32] Subsection 102(3) does not stand alone. It leaves certain questions unanswered. What does “continuing review” mean? What sort of “review”? Who should do it? What should be looked at in a review?
[33] In 2004, the Governor in Council made an Order in Council that answers some of these questions. In 2015, that Order in Council was replaced by a new one which is still in force: Directives for Ensuring 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 (2015), P.C. 2015-0809 <online: https://orders-in-council.canada.ca/attachment.php?attach=31132&lang=en>. And an administrative policy also helps to answer them: Immigration, Refugees and Citizenship Canada, Monitoring Framework for the U.S. Designation As a Safe Third Country, June 2015 (Baril Affidavit, sworn October 11, 2019, Exhibit E, Appeal Book, Vol. 37, page 15662-15667).
[34] The 2015 Order in Council requires “a continuing review of factors set out in subsection 102(2)” to ensure the designation of the United States as a safe third country remains appropriate. The Minister of Citizenship and Immigration is to “undertake a review, on a continual basis, of the factors set out in subsection 102(2) of the Immigration and Refugee Protection Act with respect to the United States” by “monitoring those factors on a regular basis”. The “Minister must report to the Governor in Council on that review when the circumstances warrant”.
[35] Under the 2015 Order in Council, if the Minister’s review of the subsection 102(2) factors favours continuing the designation, the Minister need not do anything. But if the Minister’s review detects problems that warrant the Governor in Council’s attention, the Minister must make a report to the Governor in Council. Upon receiving the report, the Governor in Council considers whether the designation of the foreign country should be revoked.
[36] Why was the Governor in Council given the responsibility to decide on matters of designation and revocation? Answering this question helps to shed light on the nature and content of the Governor in Council’s decision: League for Human Rights of B'Nai Brith Canada v. Odynsky, 2010 FCA 307, [2012] 2 F.C.R. 312 at para. 76.
[37] The Governor in Council is the “Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada”: Interpretation Act, R.S.C. 1985, c. I-21, subsection 35(1), and see also the Constitution Act, 1867, (UK), 30 & 31 Vict., c. 3, s. 91, reprinted in R.S.C. 1985, Appendix II, No. 5, sections 11 and 13. All the Ministers of the Crown, not just the Minister, are active members of the Queen’s Privy Council for Canada. They meet in a body known as Cabinet. Cabinet—sitting at the apex of the executive of the Canadian government—is “to a unique degree the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation” and, by convention, it attempts to represent different geographic, linguistic, religious, and ethnic groups: Norman Ward, Dawson’s The Government of Canada, 6th ed., (Toronto: University of Toronto Press, 1987) at pages 203-204; Richard French, “The Privy Council Office: Support for Cabinet Decision Making” in Richard Schultz, Orest M. Kruhlak and John C. Terry, eds., The Canadian Political Process, 3rd ed. (Toronto: Holt Rinehart and Winston of Canada, 1979) at pages 363-394. All the levers of government are present at the Cabinet table.
[38] In response to a report from the Minister raising concerns, the Governor in Council can consider whether to maintain the foreign country’s designation or revoke it. But given its status, nature and powers, the Governor in Council can do much more. It can authorize diplomatic, state-to-state discussions with the government of the foreign country to try to fix anything that casts into doubt the country’s compliance with the subsection 102(2) factors. From those discussions, it may learn of developments that could impact on the designation but it may also learn that the foreign country will address these developments through new initiatives. It can also amend the Regulations and tailor the exceptions under the scheme to address any new developments: para. 102(1)(c) of the Act and Article 6 of the Safe Third Country Agreement. It may have other policy considerations to consider. It may ask for further investigations to be made. This is not necessarily an exhaustive list.
[39] To assist in the conducting of subsection 102(3) reviews, an administrative policy has been developed. It is entitled, “Monitoring Framework for the U.S. Designation as a Safe Third Country”.
[40] The Monitoring Framework requires subsection 102(3) reviews to focus on systemic concerns in the United States, not isolated incidents. The reviews are “to track developments in the U.S.” that “would considerably weaken the level of human rights and refugee protection that the U.S. provides” and, thus, cast doubt “on its ability to continue to meet the criteria for designation as a safe third country”. It requires subsection 102(3) reviews to be conducted continually so that Immigration, Refugees and Citizenship Canada can “identify, in a timely manner, changes in the U.S.” that might affect “its status as a safe third country”. This furthers “responsible action and decision-making” on whether the designation of the United States remains appropriate.
[41] The Monitoring Framework requires subsection 102(3) reviews to examine two sets of indicators:
Indicators concerning significant changes in the United States refugee protection system. These include how the United States applies the non-refoulement principle, how it applies exclusion clauses in the Refugee Convention (e.g., clauses 1E and 1F), its consistency and quality of adjudication, whether refugee claimants have effective access to counsel, the United States’ practices of detention and the operation of its judicial system.
Indicators to monitor the human rights record of the United States. These include the observance in the United States of the rights contained in “long-standing core U.N. human rights legal instruments”: life, liberty and security of the person, access of refugee claimants to an independent judiciary, civic and political freedoms, the rights of non-citizens, and freedom from discrimination.
These help to ensure that subsection 102(3) reviews are detailed and thorough.
[42] Both indicators are to be examined using quantitative and qualitative information from a wide variety of governmental and non-governmental sources, such as documents from U.N. sources, publications of international human rights organizations and supra-national and regional organizations, international media, U.S. government publications and reports from reputable non-government organizations such as the Claimants, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches.
[43] Other portions of the Act are potentially relevant and, thus, form part of this legislative scheme. Under the Act, Canadian immigration officers, upon finding a claimant is ineligible, have a number of powers and discretions. These include:
Issuing a temporary residence permit under subsection 24(1) of the Act;
Deferring removal upon request if the officer finds that exceptional circumstances exist based on evidence of risk of death, extreme sanction, or inhumane treatment: Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355 at paras. 50-52; Canada (Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286, [2012] 2 F.C.R. 133;
Transferring the matter to Immigration, Refugees and Citizenship Canada when an officer determines there are exceptional circumstances. Based on humanitarian and compassionate considerations or public policy considerations, Immigration, Refugees and Citizenship Canada can decide whether to grant access to the Refugee Protection Division by waiving either the ineligibility finding under paragraph 101(1)(e) of the Act or the pre-removal risk assessment bar under paragraph 112(2)(b) of the Act: Act, ss. 25, 25.1 and 25.2.
[44] As well, refugee claimants have access to the Federal Court if they believe the circumstances of their removal warrant the Court’s intervention: Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 699 at para. 87; Brown v. Canada (Citizenship and Immigration), 2020 FCA 130 at paras. 158-159.
[45] This Court’s case law shows that these powers and discretions can work to alleviate harsh effects caused by the Act: see Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144 at paras. 13-23; Tapambwa at paras. 87-88; Revell at paras. 50-52; Brown at paras. 150-159.
(2) Assessment and conclusion
[46] Paragraph 101(1)(e) of the Act and section 159.3 of the Regulations are part of an interrelated legislative scheme. The two sections do not sit alone and in isolation. It is artificial to view and analyze them in the abstract, all the more so after a foreign country has been designated. After designation, subsection 102(3) reviews are to take place continually to ensure that designation remains appropriate.
[47] Put another way, if someone were to ask why a foreign country continued to be designated, say, in 2017 when the applications for judicial review in this case were brought, the answers are to be found not in the original designation in 2004 but in one or more subsection 102(3) reviews conducted up to that time, the failure to conduct reviews, the failure to conduct them properly or the failure to refer matters to the Governor in Council for assessment and decision, the findings and recommendations in those reviews, and the Governor in Council’s reactions or non-reactions to those findings and recommendations. For the purposes of these reasons, all these activities shall be described as “subsection 102(3) reviews and related administrative conduct”. At a higher level, one also could query whether subsection 102(3), the 2015 Order in Council, the Monitoring Framework and the reviews have been designed properly and have been working as they should.
C. The Claimants’ Charter challenge is not properly constituted
(1) The true nature of the Claimants’ Charter challenge
[48] Before us is an appeal from applications for judicial review in the Federal Court. We must begin by identifying the “real essence” and “essential character” of the applications. We do this by “reading [them] holistically and practically without fastening onto matters of form”: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50.
[49] All of the applications challenge the decision of an officer at an entry point who found the individual Claimants’ claims for refugee protection to be ineligible for referral to the Refugee Protection Division under paragraph 101(1)(e) of the Act because of the designation of the United States under section 159.3 of the Regulations. All allege that the officer had no power to do that because those two provisions were invalid.
[50] Invalidity is alleged to stem from two problems, ultra vires and the Charter. The ultra vires issue will be canvassed later in these reasons.
[51] The Claimants say the two provisions cause effects that are contrary to section 7, section 15 or both. The Claimants also say the two provisions are not justified under section 1 and must be struck down under section 52 of the Constitution Act, 1982.
[52] The Claimants do not say that other provisions, statutory instruments or policies are invalid because they cause effects contrary to the Charter. In particular, the Claimants do not seek to invalidate subsection 102(3), the 2015 Order in Council or the Monitoring Framework. Nor do they say that these matters are part of the cause of any unconstitutional effects caused by the two provisions.
[53] As well, in their applications, the Claimants do not challenge any subsection 102(3) reviews and related administrative conduct. For example, they do not challenge or seek remedies concerning administrative conduct in relation to subsection 102(3) reviews, the outcome of reviews that left the designation in place, reports to the Governor in Council or the failure to report to the Governor in Council, or any decisions at any time by the Governor in Council to keep the designation in place. None of these things are said to be part of the cause of any unconstitutional effects. In their memorandum of fact and law, the Claimants do make submissions alleging inadequacies in the subsection 102(3) reviews, but only in support of their submission that the designation of the United States as a safe country is ultra vires the Act.
[54] Thus, the real essence and essential character of the Claimants’ applications is a challenge to paragraph 101(1)(e) of the Act and section 159.3 of the Regulations, and only those two provisions. Alone and in isolation they are said to cause unconstitutional effects. Based on this, as we shall see, the evidentiary record that developed in the Federal Court concentrated on general effects of the designation of the United States, often described in terms of individual incidents rather than the subsection 102(3) reviews and related administrative conduct and their effect.
[55] The Claimants’ applications do not fit with the nature of the legislative scheme. To reiterate, paragraph 101(1)(e) of the Act and section 159.3 of the Regulations do not sit alone and in isolation. They are part of an interrelated legislative scheme. And after designation, the real cause of any continued designation or decision to revoke it is the subsection 102(3) reviews and related administrative conduct.
(2) The nature of the Charter and the basic requirements for a challenge under it
[56] The Charter sets out rights and freedoms and guarantees them subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. But nowhere does the Charter invite courts to depart from their role as courts. Nor does it invite judges—career lawyers who happen to hold a judicial commission—to follow whatever procedures they wish. Rather, the Charter is a document of law, surrounded, suffused and sustained by law. In fact, tens of thousands of cases have been decided under it, a veritable mountain of guidance.
[57] From this mountain, certain immutable principles bind us all. One of the most basic is that Charter claimants must show that some state action—for example, legislation or administrative conduct by state officials—has caused an infringement of rights or freedoms. Inherent in this are two requirements: the Charter claimants must identify the state action responsible for the infringement, i.e., demonstrate a causal link between the state action and the infringement, and place enough evidence before the Court to prove causation and infringement. See, e.g., Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 at 447 and 490 S.C.R.; Symes v. Canada, [1993] 4 S.C.R. 695, 110 D.L.R. (4th) 470 at 764-765 S.C.R.; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 60; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at paras. 73-78; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176 at paras. 126, 131-134; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398 at paras. 251-254 and cases cited therein. Common to these requirements is causation. Causation is key.
[58] From this, two practical rules have emerged in the jurisprudence:
(a) Legislative provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. The provisions, taken in isolation, may not have caused the Charter infringement. Other related provisions may be responsible or may prevent or cure any possible defects. This sort of artificial and narrow challenge often results in the creation of an unduly artificial and narrow evidentiary record.
(b) Where administrative action or administrative inaction under legislation is the cause of a rights infringement, it, not the legislation, must be challenged: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120. Challenging the legislation and ignoring the administrative action or administrative inaction will not satisfy the requirement of causation between the state action and the rights infringement. This can also lead to the development of an unduly artificial and narrow evidentiary record.
[59] In considering a Charter challenge, another basic principle must be kept front of mind: courts are courts and have to act like courts. Thus, courts can deal only with the challenge the Charter challengers have advanced and courts can work only with the evidence the parties have offered concerning that challenge. Courts cannot go beyond the challenge and address a different challenge. Nor can they help themselves to evidence as if they are a roving commission of inquiry. Instead, Courts dealing with a Charter challenge are “firmly grounded in the discipline of the common law methodology”: Brian Morgan, “Proof of Facts in Charter Litigation,” in Robert J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987), 159 at 162, cited with approval by the Supreme Court in MacKay v. Manitoba, [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385 at 363 S.C.R. and Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, 73 D.L.R. (4th) 686 at 1099-1101 S.C.R.
(3) Application of these principles to the Claimants’ Charter challenge
[60] The Claimants’ Charter challenge offends the two practical rules. The fundamental requirement of causation that underlies both rules has not been met. This has also rendered the evidentiary record on key issues too thin to permit responsible adjudication. As a result, the Claimants’ Charter challenge must be dismissed.
(a) Applying the two practical rules
(i) Legislative sections cannot be taken in artificial isolation and selectively challenged
[61] Assuming for the moment that there is a Charter infringement in this case, what caused it? As the analysis of the legislative scheme in section B of these reasons shows, subsection 102(3) reviews play a pivotal role in ensuring that continued designation remains appropriate. In this case, the cause of any infringement is not the designation of the United States 17 years ago but the subsection 102(3) reviews and related administrative conduct that has caused the designation to continue. It was incumbent on the Claimants to challenge that.
[62] But they did not do that. Instead, they plucked two provisions out of this complex, interrelated legislative scheme and have singled them out for attack. This was wrong. By attacking those two provisions and only those two—as if the rest of the legislative scheme and administrative conduct under that scheme does not exist—the Claimants have created a strawman and have asked us to decide on its constitutionality. This we cannot do. Courts deciding constitutional cases with big public impact do not deal with strawmen.
[63] This is fatal to the Claimants’ challenge: PHS Community Services, above.
[64] In PHS Community Services, the Supreme Court considered the Controlled Drugs and Substances Act, S.C. 1996, c. 19. That Act is structurally similar to the Act in this case. Like this case, the relevant provisions of the Controlled Drugs and Substances Act consisted of a general provision whose effects are mitigated by a provision elsewhere in the legislative scheme. Specifically, the Controlled Drugs and Substances Act prohibited the possession of certain drugs and substances (subsection 4(1)) but allowed the Minister of Health to grant exemptions from the prohibition (section 56).
[65] The Charter claimant in PHS Community Services, the Insite safe injection facility, challenged the general provision, subsection 4(1), arguing that it violated section 7 of the Charter and was not saved under section 1. Just like the Claimants here, Insite argued that the general provision was grossly disproportionate and overbroad.
[66] The Supreme Court unanimously dismissed Insite’s Charter challenge. The challenge was directed against the general provision, subsection 4(1), “in isolation” rather than “in the context of other provisions… notably s. 56” (at para. 109). In words apposite to the Claimants’ challenge in the case before us, the Supreme Court observed that if the general provision operated in isolation, with “no provision for exemptions”, the “assertions that it is arbitrary, overbroad and disproportionate in its effects might gain some traction” (at para. 109). But the general prohibition did not operate that way. It worked hand in hand with the mitigating provision, section 56.
[67] The Supreme Court concluded that the “constitutional validity of s. 4(1) of the Act cannot be determined without considering the provisions in the Act designed to relieve against unconstitutional or unjust applications of that prohibition” (at para. 109). Subsection 4(1) was interrelated to and could not be separated from section 56. In the Supreme Court’s view, section 56 acted “as a safety valve that prevents [the general provision] from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects” (at para. 113).
[68] Thus, the Charter challenge had to be brought against all relevant parts of the legislative scheme, not just the general provision in isolation. As this was not done, the challenge against the general provision was dismissed.
[69] But the Supreme Court went further. It held that the entire legislative scheme, consisting of the general provision and the safety valve, was constitutional (at para. 114). Any problem with constitutionality was “not in the statute but in the Minister’s exercise of the power the statute gives him to grant appropriate remedies” against any effect causing a Charter violation (at para. 114). Here, the Supreme Court suggests that the challenge in PHS Community Services properly lay against the Minister’s discretionary decision refusing an exemption from the general prohibition.
[70] Just as in PHS Community Services, paragraph 101(1)(e) of the Act and section 159.3 of the Regulations cannot be challenged in isolation. A safety valve in the legislative scheme in issue here is the review procedure under subsection 102(3). In this case, if there are effects contrary to the Charter, they stem not from paragraph 101(1)(e) of the Act and section 159.3 of the Regulations but from the subsection 102(3) reviews and related administrative conduct. This Court has previously dismissed challenges to the Act that artificially isolate provisions: De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at para. 81; Sogi v. Canada (Minister of Citizenship and Immigration), 2004 FCA 212, [2005] 1 F.C.R. 171 at para. 23.
[71] Fundamentally then, PHS Community Services holds that a Charter challenge must be directed to the state action—legislation or administrative conduct—that causes the Charter infringement. In this regard, it stands alongside and is bolstered by the Supreme Court authority on the requirement of causation cited at paragraph 57 of these reasons.
[72] In oral argument, the Claimants submit that PHS Community Services actually supports their position. After all, in PHS Community Services, the Supreme Court, using the Charter, ordered the Minister to grant Insite its exemption from the general prohibition. Counsel urges this Court to apply PHS Community Services, grant Charter relief here, and end the designation of the United States as a safe third country.
[73] However, PHS Community Services and this case are not identical. In PHS Community Services, the challengers sought a declaration of the constitutional invalidity of the general prohibition in the Controlled Drugs and Substances Act just like the Claimants here sought a declaration of the constitutional invalidity of two designation sections. But in PHS Community Services, the challengers went further than that. They challenged administrative conduct—the Minister’s failure to grant exemptions—that caused individual rights breaches and sought individual remedies under section 24, including a declaration that the failure of the Minister to grant exemptions to individuals violated section 7 rights (at para. 116). Here, the Claimants have not done this.
[74] In paragraph 58 of these reasons, I mentioned that failing to challenge the matter that is the real cause of the infringement often leads to the development of an unduly artificial and narrow evidentiary record, one that does not speak to the real cause of the Charter infringement. This has happened here. The subsection 102(3) reviews and related administrative conduct are the real causes of the infringement, if there is one. But the evidence before us in this case on subsection 102(3) reviews and related administrative conduct is limited because they were not the focus of the Claimants’ challenge. Much more evidence concerning subsection 102(3) reviews and related administrative conduct would have appeared in this record had they been the focus of the Claimants’ challenge. We cannot be confident that this record, hobbled by the way the Claimants have cast their challenge, is sufficient for us to adjudicate the Charter issues responsibly.
[75] By way of illustration, the most recent reports from subsection 102(3) reviews were issued just before and after the Charter challenges in this case, in December 2016, March 2017 and February 2018, likely covering events right around the time of the challenges: Reasons of the Federal Court at para. 77. Yet, the Federal Court tells us that not even “the content of these reports was…in evidence”: Reasons of the Federal Court at para. 78. All that the Federal Court could surmise (at para. 78) was that “reporting continued after the 2015 [Order in Council]”. The reviews underlying these reports—to say nothing of the material administrative officials might have considered when preparing these reviews—could contain evidence of the sort described at paragraphs 34-42 and 47 of these reasons. In this case, much of this valuable evidence is missing or is in bits and pieces, highly redacted in many places due to assertions of privilege by Canada. But the Claimants advised us at the hearing that they did not object to or challenge these, in effect acquiescing to Canada’s non-disclosure. As a result, right where any Charter assessment must focus—the subsection 102(3) reviews and related administrative conduct, including any reports—lies a great big hole.
[76] The legal question for this Court “is whether the appeal record provides sufficient facts to permit the Court to adjudicate properly the issues raised”: R. v. Mills, [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1 at para. 37. The answer is no. The