Canada v. Canada (Council for refugees)

Canada v. Canada (Council for refugees)
Court (s) Database
Federal Court of Appeal Decisions
Date
2008-06-27
Neutral citation
2008 FCA 229
File numbers
A-37-08
Notes
Reported Decision
Decision Content
Date: 20080627
Docket: A-37-08
Citation: 2008 FCA 229
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUNCIL OF CHURCHES,
AMNESTY INTERNATIONAL and
JOHN DOE
Respondents
Heard at Toronto, Ontario, on May 21, 2008.
Judgment delivered at Ottawa, Ontario, on June 27, 2008.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: RICHARD C.J.
CONCURRING REASONS BY: EVANS J.A.
Date: 20080627
Docket: A-37-08
Citation: 2008 FCA 229
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUNCIL OF CHURCHES,
AMNESTY INTERNATIONAL and
JOHN DOE
Respondents
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision of Phelan J. (the “Applications judge”), granting an application for judicial review by the Canadian Council of Refugees, the Canadian Council of Churches, Amnesty International and John Doe (the “respondents”), declaring invalid sections 159.1 to 159.7 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the “Regulations”), and the Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (otherwise known as the “Safe Third Country Agreement”).
[2] In particular the Applications judge found that compliance with Article 33 of the 1951 Convention Relating to the Status of Refugees, (July 28, 1951), 189 U.N.T.S. 137 (entered into force April 22, 1954) (the “Refugee Convention”) and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (December 10, 1984), 1465 U.N.T.S. 85 (entered into force June 26, 1987) (the “Convention against Torture”, together the “Conventions”), was a condition precedent to the Governor-in-Council’s (the “GIC”) exercise of its delegated authority under section 102 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”) to designate the United States of America (the “U.S.”) as a safe third country and that, on the evidence before him, the U.S. did not comply with either. Accordingly, he held that the Safe Third Country Agreement and the implementing provisions of the Regulations were ultra vires the enabling legislation, section 102 of the IRPA; violated sections 7 and 15 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) and were not saved by section 1 of the Charter.
[3] On appeal, Her Majesty the Queen (the “appellant”) argues that the Applications judge erred in law by reviewing the Regulations as an administrative decision and that he erred in fact and in law in concluding that there was a real risk of refoulement where a refugee is returned to the U.S. Further, the appellant argues that the Applications judge erred in law in concluding that the Regulations violate the Charter.
RELEVANT FACTS
Background
[4] The Regulations at issue implement into domestic law a Safe Third Country Agreement between the Canada and the U.S. whereby if a refugee enters Canada from the U.S. at a land border point of entry, Canada will, subject to specified exceptions, send the refugee back to the U.S. The same applies for refugees crossing by land from Canada into the U.S.
[5] A “safe third country” clause first appeared in Canadian law in the 1988 amendments to the Immigration Act, 1976, R.S. 1976-77, c. 52, as amended by S.C. 1988, c. 35 and c. 36 (the “Immigration Act”). The provision allowed for the designation of another country as a “safe third country” such that refugee claimants seeking to enter Canada via such a country would not be permitted to claim protection in Canada.
[6] In 1989, the Canadian Council of Churches challenged the constitutionality of this clause, among others, however, the Federal Court of Appeal in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 224 (F.C.A.) (QL)) held that the challenge was premature as no country had yet been designated under the clause. The Supreme Court of Canada in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at 253 (Canadian Council of Churches) also disallowed the challenge, however, on the ground that the Canadian Council of Churches lacked standing to bring the challenge as there was a more reasonable and effective way to bring it, i.e., by a refugee.
[7] Through the 1990s, the Government of Canada continued to negotiate with the U.S. regarding a Safe Third Country Agreement. On December 12, 2001, the U.S.-Canada Smart Border Declaration was issued, setting out a 30 Point Action Plan that included a new commitment to negotiate an agreement.
[8] On June 28, 2002, the IRPA came into effect and as part of the IRPA, Parliament granted the GIC authority to designate a country as “safe” that, based on its laws, practices and human rights record, complies with Article 33 of the Refugee Convention and Article 3 of the Convention against Torture. These provide:
Refugee Convention, Article 33
Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Convention et protocole relatifs au statut des réfugiers, Article 33
Défense d’expulsion et de refoulement
1. Aucun des Etats Contractants n’expulsera ou ne refoulera, de quelque
manière que ce soit, un réfugié sur les frontières des territoires où sa vie ou
sa liberté serait menacée en raison de sa race, de sa religion, de sa nationalité,
de son appartenance à un certain groupe social ou de ses opinions politiques.
2. Le bénéfice de la présente disposition ne pourra toutefois être invoqué par
un réfugié qu’il y aura des raisons sérieuses de considérer comme un danger
pour la sécurité du pays où il se trouve ou qui, ayant été l’objet d’une condamnation
définitive pour un crime ou délit particulièrement grave, constitue une
menace pour la communauté dudit pays.
Convention against Torture
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Convention contre la torture
Article 3
1. Aucun Etat partie n'expulsera, ne refoulera, ni n'extradera une personne vers un autre Etat où il y a des motifs sérieux de croire qu'elle risque d'être soumise à la torture.
2. Pour déterminer s'il y a de tels motifs, les autorités compétentes tiendront compte de toutes les considérations pertinentes, y compris, le cas échéant, de l'existence, dans l'Etat intéressé, d'un ensemble de violations systématiques des droits de l'homme, graves, flagrantes ou massives.
[9] Section 5 of the IRPA requires that a certain class of regulations involving matters of public interest be laid before the House of Parliament prior to promulgation. The Regulations in issue in the present proceeding come within that class and were placed before the House prior to promulgation.
[10] Further, the GIC’s authority to enter into a Safe Third Country Agreement is found at sections 101 and 102 of the IRPA:
101. (1) A claim is ineligible to be referred to the Refugee Protection Division if
[...]
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence
101. (1) La demande est irrecevable dans les cas suivants :
[...]
e) arrivée, directement ou indirectement, d'un pays désigné par règlement autre que celui dont il a la nationalité ou dans lequel il avait sa résidence habituelle
102. (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;
(b) making a list of those countries and amending it as necessary; and
(c) respecting the circumstances and criteria for the application of paragraph 101(1)(e).
(2) The following factors are to be considered in designating a country under paragraph (1)(a):
(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;
(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
(c) its human rights record; and
(d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.
(3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.
102. (1) Les règlements régissent l'application des articles 100 et 101, définissent, pour l'application de la présente loi, les termes qui y sont employés et, en vue du partage avec d'autres pays de la responsabilité de l'examen des demandes d'asile, prévoient notamment :
a) la désignation des pays qui se conforment à l'article 33 de la Convention sur les réfugiés et à l'article 3 de la Convention contre la torture;
b) l'établissement de la liste de ces pays, laquelle est renouvelée en tant que de besoin;
c) les cas et les critères d'application de l'alinéa 101(1)e).
(2) Il est tenu compte des facteurs suivants en vue de la désignation des pays :
a) le fait que ces pays sont parties à la Convention sur les réfugiés et à la Convention contre la torture;
b) leurs politique et usages en ce qui touche la revendication du statut de réfugié au sens de la Convention sur les réfugiés et les obligations découlant de la Convention contre la torture;
c) leurs antécédents en matière de respect des droits de la personne;
d) le fait qu'ils sont ou non parties à un accord avec le Canada concernant le partage de la responsabilité de l'examen des demandes d'asile.
(3) Le gouverneur en conseil assure le suivi de l’examen des facteurs à l’égard de chacun des pays désignés.
[My emphasis]
[11] The final text of the Safe Third Country Agreement with the U.S. was signed on December 5, 2002. The GIC formally designated the U.S. two years later, on October 12, 2004, by promulgating section 159.3 of the Regulations, which came into force December 29, 2004:
159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act.
159.3 Les États-Unis sont un pays désigné au titre de l’alinéa 102(1)a) de la Loi à titre de pays qui se conforme à l’article 33 de la Convention sur les réfugiés et à l’article 3 de la Convention contre la torture et sont un pays désigné pour l’application de l’alinéa 101(1)e) de la Loi.
[12] Also promulgated on the same occasion were sections 159.1 to 159.7 of the Regulations, (these are reproduced as Appendix I to these Reasons) according to which refugee claimants who request protection at the U.S.-Canada border by land are denied access to the refugee determination process in Canada unless they meet one of the enumerated exceptions in the Regulations (section 159.5):
· family member of Canadian citizens,
· permanent residents and protected persons,
· unaccompanied minors,
· holders of Canadian travel documents,
· persons who do not need visas to enter Canada but need visas to enter the U.S.,
· persons who were refused entry to the U.S. without having their claim adjudicated or permanent residents of Canada being removed from the U.S.,
· persons who are subject to the death penalty and
· persons who are nationals of countries to which the relevant Minister has imposed a stay on removal orders.
[13] Throughout the negotiations leading to the execution of the Safe Third Country Agreement and its implementation by the promulgation of the Regulations, the United Nations High Commissioner of Refugees (the “UNHCR”) monitored the process in order to ensure that persons seeking protection from persecution would have access to a full and fair procedure to assess their claims (see Scoffield Affidavit, Appeal Book, Vol. 11, Tab 33, Exhibit B4, p. 3126; Scoffield Affidavit, Appeal Book, Vol. 11, Tab 33, Exhibit B5, p. 3135). Its monitoring role was formally recognized in Article 8(3) of the Safe Third Country Agreement, and extends to the ongoing review of the operation of the Agreement.
Leave and Judicial Review Application
[14] On December 29, 2005, the respondents launched an application for leave and judicial review seeking a declaration that the designation of the U.S. under section 102 of the IRPA was ultra vires, that the GIC erred in concluding that the U.S. complied with Article 33 of the Refugee Convention and Article 3 of the Convention against Torture and further, that the designation breached sections 7 and 15 of the Charter. For purposes of clarity, it is useful to set out in full the issues set out in the judicial review application filed before the Court:
(1) The designation, under Paragraph 159.3 of the Regulations Amending the Immigration and Refugee Protection Regulations and Sections 5(1) and 102 of the Immigration and Refugee Protection Act, of the United States of America as a country that complies with Article 33 of the 1951 Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an error of fact and law.
(2) The designation, under Paragraph 159.3 of the Regulations Amending the Immigration and Refugee Protection Regulations and Sections 5(1) and 102 of the Immigration and Refugee Protection Act, of the United States of America, and the resulting application of the ineligibility provision under Section 101(1)(e) to such persons who do not meet one of the exceptions specified under Paragraphs 159.4, 159.5 or 159.6 of the Regulations:
a. is patently unreasonable and is an error of fact and law;
b. is contrary to the obligation set out in Section 3(3)(f) of the Immigration and Refugee Protection Act to apply the legislation in a manner that complies with international human rights instruments to which Canada is a signatory, and is therefore ultra vires the Governor-in-Council;
c. is in breach of the rights to life, liberty, and/or security of the person of those subject to it and is not in accordance with the principles of fundamental justice, contrary to Section 7 of the Charter, and is not justified under Section 1 of the Charter; and
d. is in breach of the rights to equality before and under the law and to equal protection and benefit of the law without discrimination, contrary to Section 15 of the Charter, and is not justified under Section 1 of the Charter.
[15] The remedies sought were a declaration that the designation of the U.S. is ultra vires the GIC and in breach of sections 7 and 15 of the Charter; that the delegation of authority to determine eligibility under paragraph 101(1)(e) of the IRPA to officers at ports of entry, and the failure to provide access to counsel during such eligibility determinations are contrary to the principles of natural justice and are in breach of section 7 of the – the second aspect of this remedy (access to counsel) was denied by the Applications judge (Reasons, paras. 288 and 289) and is no longer in issue – and any other relief as the applicants may advise and that the Court may permit (Appeal Book, Application for Leave and for Judicial Review, Vol. 1, p. 133).
[16] Leave to proceed with the application was granted on June 29, 2006.
[17] In the Supplementary Memorandum of Fact and Law, which the respondents filed in support of their judicial review application, after leave was granted, they also argued that the GIC had, since the time of promulgation, breached its obligation to ensure a continuing review pursuant to subsection 102(3) of the IRPA (Respondents’ Supplementary Memorandum of Fact and Law, Appeal Book, Vol. 1, p. 200, paras. 89 to 97).
Standing
[18] The respondent organizations argued for public interest standing as organizations that advocate for refugee rights. In the context of this generalized attack on the Regulations, the involvement of John Doe, whose identity is protected by a confidentiality order, becomes relevant. John Doe is a U.S. refugee claimant who was denied refugee status in the U.S. and claimed that he would have sought asylum in Canada but for the Regulations (John Doe Affidavit, Appeal Book, Vol. 2, p. 390, para. 25).
[19] John Doe was initially denied refugee status in the U.S. after arriving with his wife from Colombia on June 18, 2000 on a tourist visa. Approximately 14 months later, on August 9, 2001, the U.S. commenced removal proceedings against John Doe and his wife. On December 14, 2001, John Doe submitted an application for asylum and, in the alternative, a withholding of removal based on a fear of persecution. His application was denied as a result of having failed to apply for refugee status within one year of arriving in the U.S and his application for withholding removal was refused because he failed to establish his claim on the standard of “a clear probability of persecution” required for withholding to be granted (John Doe Affidavit, Appeal Book, Vol. 2,
p. 389, paras. 23 and 24). He did not appeal this decision and continued to live illegally in the U.S. He never approached the Canadian border as he had been informed (from an unknown source) that he was ineligible to make a claim in Canada (John Doe Affidavit, Appeal Book, Vol. 2, p. 390, para. 25).
[20] During the course of the proceedings before the Federal Court, counsel for the respondent organizations also represented John Doe as he had no independent counsel. On February 1, 2007, John Doe was arrested by U.S. authorities and faced imminent deportation. The respondents filed a motion for an injunction before the Federal Court to compel the appellant “to allow John Doe and his wife to enter Canada” pending the disposition of the judicial review application which they had brought, or in the alternative, an order “restraining the [appellant] from denying him and his wife entry to Canada” (Appeal Book, Vol. 15, p. 4588). Accompanying this motion were renewed allegations of threats by the Revolutionary Armed Forces of Colombia (the “FARCs”) directed against John Doe.
[21] On February 7, 2007, the Applications judge issued a conditional order providing that if John Doe were to arrive at a Canadian port of entry, he was not to be removed by Canadian authorities (Appeal Book, Vol. 15, p. 4586). The Applications judge declined to provide any other relief until John Doe had exhausted all his remedies before the U.S. Courts (Appeal Book, Vol. 15, p. 4588). In the meantime, the U.S. Board of Immigration Appeals reopened John Doe’s claim and remanded it to an Immigration Judge for reconsideration and John Doe was eventually released from custody. Consequently, Phelan J. dismissed the remaining aspects of the respondents’ motion which he had kept in abeyance (Appeal Book, Vol. 15, p. 4610).
The evidence
[22] In support of their application for judicial review, the respondents filed a series of affidavits from U.S. academics and practitioners (Reasons, para. 106), covering various aspects of U.S. asylum law and policy until the filing of the application. These affidavits attempt to establish the current state of U.S. asylum law and policy and generally allege an erosion of U.S. institutions, laws and practices including an expansion of exclusions from protection, the use of detention, restrictions on appeals and codification of questionable asylum laws. In particular, the affidavit evidence was adduced by the respondents to demonstrate:
That persons who fail to make a claim within one year of their arrival in the U.S. are improperly barred from consideration for asylum contrary to the Refugee Convention and although a claimant would still be eligible for a withholding removal, the U.S. law imposes a higher risk standard in relation to withholding removals, being – more likely than not (Supplementary Memorandum, Appeal Book, Vol. 1, p. 200 at paras. 48-55);
The U.S. exclusion from consideration for asylum or withholding of removal of serious criminals, those who are a danger to security or terrorists goes further than what is permitted by the Conventions (idem at paras. 56, 57);
That the U.S. interprets too narrowly certain of the criteria under the Convention for granting protection. In particular, they contend that the U.S. fails to interpret the definition of refugee and that the U.S. errs in the risk standard for torture (idem at paras. 67-73);
That the U.S. practices impeded the successful advancement of a protection claim, more particularly by the detention of persons who are without valid status in the U.S. and those who arrive without proper documents (expedited removal) as well as by the failure to provide state-funded legal representation at all stages of the refugee determination process (idem at para. 74 and Martin Affidavit, Appeal Book, Vol. V, p. 1210 at paras. 37, 38 and 191).
[23] The appellant also adduced expert affidavit evidence (Reasons, para. 106) covering the history and development of the safe third country concept in the European Union (the “E.U.”) member states, including the United Kingdom (the “U.K.”), information on the background, negotiations and terms of the Safe Third Country Agreement, the process leading to the designation of the U.S. as a safe third country and the adoption of implementing Regulations, the compatibility of responsibility sharing agreements with the Refugee and Torture Convention, a description of the U.S. refugee determination system and analysis of the specific areas of U.S. refugee laws and practices and human rights record attacked by the respondents, comparisons of the U.S. approach with the various approaches taken in the E.U., U.K., Canada in the specific areas impugned by the respondents and the implementation of the Safe Third Country Agreement at the Canada-U.S. border.
[24] In addition, on cross-examination of Bruce Scoffield, lead Citizenship and Immigration Canada official in the negotiation of the Safe Third Country Agreement with the U.S., the appellant provided a copy of the “advice” that Cabinet had received regarding U.S. compliance with the factors set out in subsection 102(2) of the IRPA, dated September 24, 2002.
[25] The parties confirmed that the witnesses adduced their evidence by way of sworn statements and that all cross-examinations thereon took place outside the presence of the Applications judge.
The outcome
[26] In a lengthy decision comprising 340 paragraphs, the Applications judge allowed the application for judicial review, declaring that: the Safe Third Country Agreement and sections 159.1 to 159.7 of the Regulations were ultra vires; the GIC acted unreasonably in concluding that the U.S. was compliant with its Convention obligations; the GIC had failed to ensure continuing review of the designation of the U.S. as a safe third country as required by subsection 102(2) of the IRPA; and sections 159.1 to 159.7 of the Regulations violated sections 7 and 15 of the Charter.
[27] The formal judgment delivered on January 17, 2008 certifies the following three questions for consideration by this Court:
1) What is the appropriate standard of review in respect of the Governor-in-Council’s decision to designate the United States of America as a “safe third country” pursuant to s. 102 of the Immigration and Refugee Protection Act?
2) Are paragraphs 159.1 to 159.7 (inclusive) of the Immigration and Refugee Protection Regulations and the Safe Third Country Agreement between Canada and the United States of America ultra vires and of no legal force and effect?
3) Does the designation of the United States of America as a “safe third country” alone or in combination with the ineligibility provision of clause 101(1)(e) of the Immigration and Refugee Protection Act violate sections 7 and 15 of the Canadian Charter of Rights and Freedoms and is such violation justified under section 1?
[28] Although also asked to certify a question about whether the respondents had the standing to bring forth the application for the judicial review, the Applications judge declined to do so (Appeal Book, Vol. 15, p. 4616).
[29] The present appeal ensued and by order dated January 31, 2008, the Chief Justice stayed the operation of the Judgment until the present pronouncement.
FEDERAL COURT DECISION
[30] The Applications judge first determined that the three respondent organizations had the standing to bring the judicial review application. In particular, he held that they had successfully established the third prong of the standing test i.e, the absence of any other reasonable and effective manner to have this matter brought before a court. The Applications judge noted that no refugee from within Canada, seeking entry, can bring the claim. Only a refugee from outside Canada, an already vulnerable individual, could bring the challenge (Reasons, paras. 43, 44 and 45). The Applications judge distinguished the decision of the Supreme Court in Canadian Council of Churches, supra on that basis (Reasons, para. 40). He went on to conclude that even without John Doe, these organizations bear recognition as legitimate applicants (Reasons, para. 51).
[31] In addressing John Doe’s standing, the Applications judge reasoned that it is of no import that John Doe never approached the Canadian border as such a requirement would be wasteful, delaying and unfair (Reasons, para. 47). While the Applications judge acknowledged that the U.S. agreed to reconsider John Doe’s claim, he did not accept that this was done in good faith. According to the Applications judge, this development can only be explained by the litigation undertaken before him (Reasons, para. 53). The Applications judge therefore reasoned that even though John Doe never showed up, he was to be considered as having presented himself at the border and as having been denied entry.
[32] The Applications judge begins his substantive analysis by referring to the promulgation on October 12, 2004 of section 159.3 of the Regulations designating the U.S. as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention against Torture (Reasons, para. 26). He describes “this designation” as “the central point of contention in this judicial review” (idem).
[33] He later repeats (Reasons, para. 55) that the central issue is whether section 159.3 is ultra vires the power given by Parliament to make such Regulation (hereinafter, “the vires issue”). That in turns depends on whether the conditions precedent for the exercise of the delegated authority by the GIC were present when the designation was made.
[34] The Applications judge then begins exploring these conditions. He acknowledges that subsection 102(2) of IRPA sets out several factors which must be considered before designating a country and that the GIC considered these factors before designating the U.S. as a “safe third country” (Reasons, para. 78):
… The wording of the [Regulatory Impact and Analysis Statement] establishes that the GIC considered the application of the four factors. Furthermore, the [Respondents] set out in detail the content of a memorandum to the GIC created on September 24, 2002, and signed by the relevant Minister at the time. This memorandum appears to be the basis upon which the GIC entered into the STCA. In reviewing the points the [Respondents] extract from that memorandum, it is clear that the GIC, in reading and reviewing the Minister’s memorandum would have turned their mind to the four factors in the legislation, including the U.S. human rights record in general.
[35] However, beyond the conditions set out in subsection 102(2) of the IRPA, the Applications judge holds that the main condition is paragraph 102(1)(a) of the IRPA, which provides that the GIC is authorized to promulgate regulations “designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention against Torture” (Reasons, para. 79). According to the Applications judge compliance with the Conventions is a condition precedent to the exercise by the GIC of its delegated authority (idem). Although, the issue whether the U.S. complies is, to some extent, a matter of opinion (Reasons, para. 80), the question to be decided is objective “compliance or not” (Reasons, para. 83).
[36] The Applications judge then addresses the standard of review. Later in his reasons he acknowledges that determining whether the conditions precedent to the exercise of the delegated authority are present is a simple matter that stands to be reviewed on a standard of correctness (Reasons, para. 75). However, the respondents also take issue with the “decision” of the GIC which led to the designation “an argument involving the standard of review and its application.” (Reasons, para. 54). After conducting a pragmatic and functional analysis (Reasons, paras. 88 to 105), the Applications judge holds that the applicable standard of review is reasonableness simpliciter (as it was then known).
[37] He then embarks on an extensive analysis to determine both whether the designation was ultra vires, and whether the GIC had failed to perform its statutory duty to review the designation thereafter as contemplated by subsection 102(2) of the IRPA. The Applications judge does not explain how this second issue came to be part of the judicial review application.
[38] With respect to the extensive expert evidence filed by the parties (he highlights six affidavits filed on behalf of the respondents and three on behalf of the appellant) expressing contradictory opinion on the issue whether the U.S. was compliant with the relevant Articles of the Conventions, the Applications judge rules in two swift paragraphs that the respondents’ evidence is to be preferred whenever there is a conflict in views (Reasons, paras. 108 and 109):
[108] I find the [respondents’] experts to be more credible, both in terms of their expertise and the sufficiency, directness and logic of their reports and their cross-examination thereon. I also recognized and have given the appropriate weight to the fact that some of the [respondents’] experts could be said to speak for or have “constituencies” which means that their evidence may lean in a direction more favourably to the constituency. The same can be said for the [appellant’s] experts who testify in support of either a process in which they have been engaged from the beginning or in support of a system they have worked in. Taking account of these subjective factors, I find the [respondents’] experts to be more objective and dispassionate in their analysis and report.
[109] Therefore, I have been persuaded that, where in conflict, the [respondents’] evidence is to be preferred.
[39] The Applications judge then proceeds to review what he describes as “legal facts” to ascertain whether the U.S. protects refugees from refoulement. He notes that the issue is whether the U.S. offers “actual” protection (Reasons, para. 137). The Applications judge collapses into one his analysis of whether the designation was validly made and whether the GIC had subsequently failed to conduct an ongoing review as required by subsection 102(3) of the IRPA. He indiscriminately reviews evidence which precedes and follows the effective date of the designation before concluding both that the designation was ultra vires and that the GIC had thereafter failed to conduct the ongoing review as required by subsection 102(3) of IRPA (Reasons, para. 240). The formal judgment gives effect to both of these conclusions. [Although this is not said anywhere in the formal judgment or the reasons, both conclusions cannot stand at once. If the designation of the U.S. was ultra vires as was found, the GIC could not have breached its ongoing obligation to review it.]
[40] In addressing the Charter challenge, the Applications judge first determines that the applicable standard of review for determining whether the designation of the U.S. as a safe third country violates the Charter is correctness (Reasons, para. 276). According to the Applications judge, if Canadian officials return a refugee claimant to the U.S., pursuant to the Safe Third Country Agreement, this action must be in compliance with the Charter (Reasons, para. 281; relying on Singh v. Canada (Minister of Citizenship and Immigration), [1985] 1 S.C.R. 177 and United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283). He then proceeds to address the Charter challenge based on his earlier finding that the U.S. is not compliant with the Conventions.
[41] According to the Applications judge, a refugee’s right to life, liberty and security is clearly put at risk when he or she is returned to the U.S. under the Safe Third Country Agreement, if the U.S. does not comply with the Conventions (Reasons, para. 285). In considering whether the deprivation of a person’s right to life, liberty and security is nevertheless in accordance with the fundamental principles of justice, he finds that the lack of discretion for a Canadian immigration officer to allow a claimant to remain in Canada after determining that the claimant does not fall within the enumerated exceptions to the Safe Third Country Agreement, violates the principles of fundamental justice (Reasons, paras. 304 and 307).
[42] While recognizing that his conclusion is based on his findings under the vires analysis that the U.S. is not a safe country, the Applications judge suggests that the Regulations may violate the Charter even if the U.S. was a safe country (Reasons, paras. 311 and 312).
[43] Turning to the section 15 Charter challenge, the Applications judge finds, following an examination of the relevant factors (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at paragraph 51), that there is discrimination. According to the Applications judge, women and Colombian nationals have suffered a pre-existing disadvantage and the use of limited exceptions to the Safe Third Country Agreement does not address the specific needs of these individuals (Reasons, paras. 325 to 333). Furthermore, this unequal treatment cannot be justified under section 1 of the Charter (Reasons, paras. 335 and 336).
POSITION OF THE PARTIES
[44] Dealing with the vires issue, the appellant contends that the Applications judge erred by reviewing the promulgation of section 159.3 of the Regulations, which designates the U.S. as a safe third country, as if it was an administrative decision to be assessed on a standard of reasonableness. According to the appellant the matter before the Applications judge was a pure vires issue, and his only task was to verify whether the conditions precedent for the exercise of the delegated authority were present at the time of the promulgation.
[45] The appellant contends that the Applications judge erred in finding that compliance with the relevant Articles of the Conventions in an absolutist sense is a condition precedent to the exercise of the delegated authority. Paragraph 102(1)(a) of the IRPA sets out the statutory objective which is to designate countries that comply with the Conventions and the means of ascertaining compliance are set out in subsection 102(2) of the IRPA. By finding that “compliance” in an absolutist sense is a condition precedent, the Applications judge second guessed the promulgation of the designation. As such he usurped the authority which Parliament had expressly delegated to the GIC.
[46] In the alternative, the evidence establishes that the U.S. complies with the relevant Articles of the Convention. The conclusion reached by the Applications judge that the U.S. is not compliant is based on a “perverse” approach to the evidence as revealed by his one sided assessment of the expert evidence, and his failure to confront the position of the UNHCR that the U.S. like Canada, is a “safe” country (Scoffield Affidavit, Appeal Book, Vol. 11, Tab 33, Exhibit B-10, p. 3247).
[47] Finally, with respect to the Charter violations found to have taken place, the appellant argues that Charter litigation does not involve administrative law standards of judicial review. Rather, a person alleging Charter violations has the burden of demonstrating infringement on a balance of probabilities. The appellant submits that the Applications judge ignored these fundamental principles and erred in undertaking a Charter analysis in the context of a purely hypothetical situation.
[48] The respondents, for their part, contend that the Applications judge came to the correct conclusion for the reasons that he gave with respect to all the issues that he was called upon to decide. They further submit that it would be “absurd” to construe the relevant provisions of IRPA as allowing the GIC to designate a country that does not “actually” comply with the relevant Articles of the Conventions.
[49] The respondents add that this appeal is an attempt to re-litigate factual issues. The findings made by the Applications judge on the U.S. protection system and human rights record cannot be reviewed in the absence of a palpable or overriding error, none of which has been established.
[50] At the hearing of the appeal, Counsel for the respondents indicated that, rather than striking down sections 159.1 to 159.7 of the Regulations, the Applications judge could have limited his Charter remedy to a declaration that the Regulations were in breach of the Charter only to the extent that they fail to give border officers the discretion to allow a refugee claimant to remain in Canada on grounds other than those enumerated in section 159.5 of the Regulations (see para. 12 above). According to counsel, this absence of discretion is what creates a real risk of refoulement for a class of refugees, contrary to section 7 of the Charter.
ANALYSIS AND DECISION
First certified question: standard of review
[51] The first question certified by the Applications judge deals with the vires issue and seeks to identify the appropriate standard of review in respect of the GIC’s “decision” to designate the U.S. as a safe third country. In this respect, a preliminary issue arises as to whether the promulgation of the designation is a “decision” subject to judicial review pursuant to section 18 of the Federal Courts Act, R.S. 1985, c. F-7, (the “F