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

Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2020-07-22
Neutral citation
2020 FC 770
File numbers
IMM-2229-17, IMM-2977-17, IMM-775-17
Notes
A correction was made on July 31, 2020.
Reported Decision
Decision Content
Date: 20200722
Dockets: IMM-2977-17
IMM-2229-17
IMM-775-17
Citation: 2020 FC 770
Ottawa, Ontario, July 22, 2020
PRESENT: Madam Justice McDonald
Docket: IMM-2977-17
BETWEEN:
THE CANADIAN COUNCIL FOR REFUGEES,
AMNESTY INTERNATIONAL,
THE CANADIAN COUNCIL OF CHURCHES,
ABC, DE [BY HER LITIGATION GUARDIAN ABC],
FG [BY HER LITIGATION GUARDIAN ABC]
Applicants
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
Docket: IMM-2229-17
AND BETWEEN:
NEDIRA JEMAL MUSTEFA
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
Docket: IMM-775-17
AND BETWEEN:
MOHAMMAD MAJD MAHER HOMSI
HALA MAHER HOMSI
KARAM MAHER HOMSI
REDA YASSIN AL NAHASS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
JUDGMENT AND REASONS
Table of Contents
I. INTRODUCTION 5
II. FACTUAL BACKGROUND 7
ABC, DE, and FG (IMM-2977-17) 7
Ms. Mustefa (IMM-2229-17) 9
The Al Nahass/ Homsi Family (IMM-775-17) 10
Public Interest Parties 11
III. CONSOLIDATION ORDER 11
IV. RELIEF SOUGHT 12
V. NOTICE OF CONSTITUTIONAL QUESTION 13
VI. THE EVIDENCE 13
Applicants’ Evidence 13
Respondents’ Evidence 16
VII. PRELIMINARY MATTERS 18
Expert Evidence of Deborah Anker and Karen Musalo 18
Ms. Mustefa’s Request to Make New Arguments 21
VIII. ISSUES 22
IX. STANDARD OF REVIEW 22
X. ANALYSIS 24
Is Section 159.3 of the Regulations Ultra Vires? 24
Statutory and Convention Provisions 24
Applicants’ Submissions 28
Designation Inconsistent with Statutory Purpose and Grant of Power 28
Failure to Satisfy Conditions Precedent 31
Analysis – Ultra Vires 32
Does the STCA Violate Section 7 of the Charter? 35
Applicants’ Submissions 35
Respondents’ Submissions 36
Analysis 36
Is the Section 7 Infringement Justified Under section 1 of the Charter? 53
Does the STCA Infringe Section 15 of the Charter? 56
Should the Court Decline to Consider Ms. Mustefa’s Application? 57
XI. CERTIFIED QUESTIONS 58
XII. CONCLUSION 59
JUDGMENT 60
I. INTRODUCTION
[1] The Applicants challenge the validity and the constitutionality of the legislation implementing 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 (referred to as the “Safe Third Country Agreement” or “STCA”). The Applicants allege that by returning ineligible refugee claimants to the United States (US), Canada exposes them to risks in the form of detention, refoulement, and other violations of their rights contrary to the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS at 137 (Refugee Convention or RT) and contrary to the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT, collectively referred to as the Conventions).
[2] The Safe Third Country Agreement is given effect by s. 101(1)(e) of the Immigration and Refugee Protection Act, SC 2001 c 27 (IRPA), and by s. 159.3 of the Immigration and Refugee Protection Regulations SOR/2002-227 (IRPR or the Regulations) which in 2004 designated the US a “safe third country”.
[3] The Safe Third Country Agreement operates by deeming those who arrive at a Canada land Port of Entry (POE) from the US ineligible to make a refugee claim in Canada. These ineligibility provisions apply to a narrow category of refugee claimants – only those arriving from the US at a Canada land POE. Claimants arriving from the US by air, by sea or between land POEs, are eligible to have their refugee claims referred to the Refugee Protection Division (RPD) for assessment.
[4] Each of the individual Applicants, who are citizens of El Salvador, Ethiopia, and Syria, arrived at a Canada land POE from the US and sought refugee protection. The Applicants, ABC and her children, are from El Salvador. Their refugee claim relates to gang violence and gender-based persecution. The Applicant, Ms. Mustefa is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the US. The Homsi /Al Nahass Applicants are a Muslim family from Syria who left the US following the issuance of the first travel ban by the US government.
[5] While their individual situations vary, each of the Applicants sought refugee protection in Canada fearing persecution in their home country. However, because they arrived from the US at a land POE, the Applicants were ineligible to make a refugee claim in Canada by operation of the STCA.
[6] Each of the Applicants seek judicial review of the ineligibility decisions. ABC and her daughters (DE and FG) obtained a stay of their removal from Canada pending the determination of this judicial review application. The Homsi/Al Nahass family obtained Temporary Resident Permits (TRPs). Ms. Mustefa was returned to the US where she was immediately imprisoned.
[7] The Canadian Council for Refugees (CCR), Amnesty International (AI), and, Canadian Council of Churches (CCC) were granted the right to participate in these Applications as public interest parties.
[8] The Applicants challenge the STCA on two fronts.
[9] First, they argue that the Canadian government failed in its duty to review the ongoing designation of the US as a “safe third country” as required by ss. 102 (2) and 102 (3) of the IRPA, and therefore the legislation and regulations that make the STCA law are ultra vires. They argue that the treatment of asylum-seekers in the US is not in keeping with the spirit or the objective of the STCA. For the reasons outlined below, I have concluded that the legislation enacting the STCA is not ultra vires.
[10] Second, the Applicants argue that the legislation implementing the STCA is contrary to 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 (UK), 1982, c 11 (Charter). For the reasons outlined below, I have concluded that the actions of Canadian authorities in enforcing the STCA result in ineligible STCA claimants being imprisoned by US authorities. I have concluded that imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by section 7 of the Charter. I further conclude that section 1 of the Charter does not save the section 7 violations from being unconstitutional.
II. FACTUAL BACKGROUND
ABC, DE, and FG (IMM-2977-17)
[11] The Applicant ABC and her daughters DE and FG are citizens of El Salvador. On April 3, 2013, ABC was raped by MS-13 gang members in her home when they demanded money and threatened her with a gun. They told ABC they would kill her, and her daughters, if she went to the police. ABC became pregnant as a result of this rape. While she was pregnant, the gang members showed up at her house and threatened to kill her. During this period, men also followed and accosted her daughters. At one point, an unknown man stopped them while they were walking to school and asked about their father. One man told them that if their father “did not show his face” the men would “get even by taking it out on the girls.”
[12] In November 2016, MS-13 members again entered ABC’s home and pointed a gun at her head, demanded money, and threatened to kill her and her daughters. After this incident, ABC determined that she and her daughters were not safe in El Salvador and on November 10, 2016, she left El Salvador with her daughters. They arrived in the US on November 26, 2016.
[13] Upon arrival in the US, ABC and her daughters were held at a detention centre and advised that they were under removal proceedings. Following their release they stayed with family in Mississippi. In December 2016, they travelled to Buffalo, New York, where they stayed at a refugee shelter.
[14] In January 2017, ABC and her daughters arrived at the Fort Erie, Ontario, POE to make a refugee claim in Canada. The Canada Border Services Agency (CBSA) Officer advised them to withdraw their claim as they would be found ineligible to make a claim under STCA. ABC and her daughters returned to the refugee shelter in the US.
[15] On July 5, 2017, ABC and her daughters again travelled to the Fort Erie POE to make a claim for refugee protection in Canada. The CBSA Officer determined that they were ineligible pursuant to s. 101(1)(e) of the IRPA due to the operation of the STCA.
[16] With the assistance of legal counsel, ABC filed this Application for Judicial Review and filed a Motion for a stay of their removal from Canada. On July 6, 2017, I granted an Order staying their removal from Canada.
Ms. Mustefa (IMM-2229-17)
[17] Ms. Mustefa is an Ethiopian national who left the country when she was 11 years old for medical treatments in the US. She entered the US on a Visitor’s Visa as an unaccompanied minor and stayed with her uncle Gabriel Mustefa while undergoing medical treatments. In the summer of 2008, Ms. Mustefa went to live with her aunt in Georgia where she remained until she finished high school in 2015. Ms. Mustefa planned to pursue further education in the US but she could not obtain proper documentation having arrived in the US after the cut off date to apply under the Deferred Action for Childhood program.
[18] Around this same time in Ethiopia oppressive acts against the Oromo, Ms. Mustefa’s ethnic group, were escalating. In 2016 and 2017, the Oromo were subject to mass arrests and held without charges or trials. The government dispatched the military to Oromo regions leading to the death and disappearance of many Oromo youth. In October 2016 Ethiopian government forces opened fire into a crowd of people attending a cultural festival and the Ethiopian government declared a state of emergency in effect until August 2017.
[19] Due to the situation in Ethiopia, and not being able to seek asylum in the US, on April 10, 2017, Ms. Mustefa arrived at the POE in Saint-Bernard-de-Lacolle, Quebec, and made a claim for refugee protection. She was questioned at the POE for approximately 30 hours and was informed on April 11, 2017, that she was ineligible for refugee protection pursuant to s. 101(1)(e) of the IRPA.
[20] CBSA Officers returned Ms. Mustefa to the US. She was placed in detention at the Clinton Country Correctional Facility where she was held in solitary confinement for the first week (pending a tuberculosis test) and released on a bond on May 9, 2017.
The Al Nahass/ Homsi Family (IMM-775-17)
[21] The adult female Applicant, Reda Yassin Al Nahass, is a citizen of Syria. The other Applicants are her adult son, Mohammad Majd Maher Homsi, who was born in Syria, and her young son and daughter, Karam Maher Homsi and Hala Maher Homsi, who were both born in Saudi Arabia. Ms. Al Nahass lived in Syria until 2003 when the family moved to Saudi Arabia. The family returned to Syria regularly until the war began in 2011.
[22] In 2015, Ms. Al Nahass, travelled to Syria for medical treatment when she was kidnapped, physically attacked and threatened with sexual violence. Her family was able to secure her release. While the family was in the US in November 2015, Ms. Al Nahass’s husband lost his job in Saudi Arabia, which put her family’s status in Saudi Arabia in jeopardy, as they were dependent on her husband’s employer-sponsored residency permit.
[23] Ms. Al Nahass started the asylum process in the US in the spring of 2016. However, she became concerned with the increasing public hatred expressed toward Muslim and Arab people and following the passage of Executive Order 13769, the so-called “Muslim Ban”.
[24] On February 2, 2017, Ms. Al Nahass, and her children tried to enter Canada by walking across the border at Roxham Road between New York and Quebec. As they approached the border, a CBSA officer told them they would be arrested if they crossed into Canada. They were advised to go back to the US. Upon return to the US they were stopped by US authorities and put in separate police cars. They were fingerprinted and questioned. During this time, Ms. Al Nahass was forced to take off her hijab and was photographed. An hour later, they were taken to Saint-Bernard-de-Lacolle, Quebec, POE.
[25] On February 3, 2017, Ms. Al Nahass was told she and her children were ineligible because they were attempting to enter Canada from the US. While Ms. Al Nahass was at Saint-Bernard-de-Lacolle, she managed to contact a lawyer who filed an emergency stay of removal application on behalf of the family. The stay was granted, following which the family was granted TRPs allowing them to remain in Canada. The family has since been granted permanent resident status.
Public Interest Parties
[26] On December 11, 2017, Justice Diner granted public interest standing to the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches on the grounds that the application for judicial review “raises a serious justiciable issue in which the Organizations have a genuine interest” (Canadian Council for Refugees et al. v Canada (Immigration, Refugees and Citizenship) 2017 FC 1131 at para 74).
III. CONSOLIDATION ORDER
[27] On April 12, 2018, Justice Diner ordered these three applications be consolidated and heard together (Canadian Council for Refugees et al. v Canada (Immigration, Refugees and Citizenship), 2018 FC 396 at para 39).
IV. RELIEF SOUGHT
[28] In their Applications for Judicial Review, the Applicants each phrase the requested relief slightly differently, however, they all seek the following common relief:
An order that the decisions of the Officers be set aside and the individual Applicants’ claims for refugee protection be found eligible and referred to the Refugee Protection Division for determination;
A declaration that s. 159.3 of the Immigration and Refugee Protection Regulations is ultra vires or otherwise unlawful because the designation of the United States of America is not and/or was not at the time of the decision under review in conformity with ss. 102(1)(a), 102(2) and 102(3) of the Immigration and Refugee Protection Act;
A declaration that s. 159.3 of the Regulations is inconsistent with Canada’s international obligations under the Refugee Convention and the Convention Against Torture;
A declaration that s. 159.3 of the Regulations is of no force or effect pursuant to section 52 of the Constitution Act, 1982, because it violates section 7 and/or section 15(1) of the Charter of Rights and Freedoms;
A declaration that s. 101(1)(e) of the IRPA is of no force or effect pursuant to section 52 of the Constitution Act, 1982, because it violates section 7 and/or section 15(1) of the Charter of Rights and Freedoms.
V. NOTICE OF CONSTITUTIONAL QUESTION
[29] The Applicants served a Notice of Constitutional question pursuant to section 57 of the Federal Courts Act, RSC 1985 c F-7, on the Attorney General of Canada and each of the Attorneys General for the Provinces and Territories. Apart from the Attorney General of Canada, none of the Attorneys General responded. The Notice of Constitutional question stated:
The Applicants intend to question the constitutional validity of the combined effect of s. 101(1)(e) of the Immigration and Refugee Protection Act (“the IRPA”) and s. 159.3 of the Immigration and Refugee Protection Regulations (“the Regulations”).
VI. THE EVIDENCE
[30] The parties filed extensive evidentiary records including affidavits, reports, expert opinions and transcripts. Below is a summary of the evidence.
Applicants’ Evidence
[31] The Applicants filed affidavits from the following individuals:
The Applicant ABC, whose affidavits were sworn June 29, 2017, September 8, 2017, and December 15, 2017.
The Applicant, Nedeira Mustefa, whose affidavit was sworn September 14, 2017.
The Applicant, Reda Al Nahass, whose affidavit was sworn April 29, 2017.
Clare Long, whose affidavit was sworn June 24, 2018, is a Senior Researcher at the US Program of Human Rights Watch.
Janet Dench, whose affidavits were sworn September 7, 2017 and June 27, 2018, is the Executive Director of the Canadian Council for Refugees.
Christina Fialho, whose affidavit was sworn June 25, 2018, is the co-Executive Director of Freedom for Immigrants.
Audrey Macklin, whose affidavit was sworn on June 23, 2018, is a Professor at the University of Toronto and the Director of the Centre for Criminology and Sociolegal Studies.
Gloria Nafziger, whose affidavits were sworn December 18, 2017 and June 26, 2018, is the Refugee Coordinator at Amnesty International Canada.
Ksenija Novakovic, whose affidavit was sworn on June 29, 2018. Ms. Novakovic worked at Downtown Legal Services under the supervision of Prasanna Balasundaram, counsel for ABC, DE, FG and Ms. Mustefa.
Carol Anne Donohue, whose affidavit was sworn August 30, 2018, is an immigration lawyer practising in Pennsylvania, USA.
Ryan Witmer, whose affidavit was sworn July 24, 2018, is a lawyer practising immigration law in Buffalo, USA.
Timothy Warden-Hertz, whose affidavit was sworn August 30, 2018, is the Directing Attorney of the Tacoma office of the Northwest Immigration Rights Project.
Ruby Robinson, whose affidavit was sworn June 20, 2018, is a co-managing attorney at the Michigan Immigrant Rights Centre.
Ramon Irizarry, whose affidavit was sworn June 25, 2018, is the Supervising Immigration Attorney at the Volunteer Lawyers Project of the Erie County Bar Association.
Nadege Jean-Mardy, whose affidavit was sworn June 25, 2018, founded Action D’Entraide Multifonctionnelle du Canada and currently serves as Director General of the organization.
Sarah Alarabi, whose affidavit was sworn on June 17, 2018, describes her experience seeking refugee protection in Canada under the family member exception to the STCA.
H.I., whose affidavit was sworn July 31, 2018, attempted to seek refugee protection in Canada, but was found ineligible under the STCA.
J.K., whose affidavit was sworn November 10, 2017, and was translated by Carmen Maria Rey on November 13, 2017. J.K. tried to make a refugee claim in Canada but was told by Canadian officers that she was “not in a good place to cross”.
L.M., whose affidavit was sworn on November 10, 2017, attempted to seek refugee protection in Canada, but was found ineligible under the STCA.
N.O., whose affidavit was sworn July 25, 2018, attempted to seek refugee protection in Canada in July 2017, but was found ineligible under the STCA.
P.Q., whose affidavit was sworn April 20, 2018, made a refugee claim at a Canadian border crossing in May 2015.
R.S., whose affidavit was sworn July 25, 2018 and translated by Suu Yang on July 27, 2018, attempted to go to a Canadian border crossing in March 2017, but was stopped by American police officers.
T.U., whose affidavit was sworn July 31, 2018, made a refugee claim in February 2017 at a Canadian Port of Entry.
V.W., whose affidavit was sworn April 26, 2018, attempted to enter Canada but she was returned to the United States and detained.
X.Y., whose affidavit was sworn on an unknown date, attempted to enter Canada at a Canadian Port of Entry but was told he was not able to make a refugee claim because of the STCA.
Z.Z., whose affidavit was sworn on an unknown date, made a refugee claim at the Canadian border in October 2017.
[32] The Applicants rely upon the Affidavit evidence of the following experts:
Professor Deborah Anker, whose affidavits were sworn October 6, 2017 and June 26, 2018, is a professor at Harvard Law School and the Founder and Director of the Harvard Law School Immigration and Refugee Clinical Program.
Professor Karen Musalo, whose affidavits were sworn September 22, 2017 and June 25, 2018, is a professor at the University of California Hasting College of Law.
Elizabeth Kennedy, whose affidavit was sworn August 7, 2018, is scholar with an expertise in country conditions in El Salvador, Honduras and Guatemala.
Anwen Hughes, whose affidavits were sworn December 6, 2017 and June 26, 2018, is the Deputy Legal Director of the Refugee Representation Program at Human Rights First.
Lenni Beth Benson, whose affidavit was sworn June 25, 2016, is a professor at New York Law School and is an expert in US immigration law with a further expertise in the rights of children and their ability to seek protection under US asylum law and other provisions of the US Immigration and Nationality Act.
James C. Hathaway, whose affidavit was sworn June 27, 2018, is a professor of law at the University of Michigan, specializing in international and comparative refugee law.
Abed Ayoub, whose affidavit was sworn June 26, 2018, is the National Legal Director of the American-Arab Anti-Discrimination Committee.
Katharina Obser, whose affidavits were sworn December 4, 2017 and June 25, 2018, is a Senior Policy Advisor in the Migrant Rights and Justice Program of the Women’s Refugee Commission.
Jaya Ramji-Nogales, whose affidavit was sworn August 27, 2018, is a law professor at Temple University who has conducted several empirical studies of asylum adjudication in the United States.
Respondents’ Evidence
[33] The Respondents rely upon the following Affidavit evidence:
Bruce Scholfield, whose affidavit was sworn October 9, 2018, is a former employee of the Department of Citizenship and Immigration (now Immigration Refugees and Citizenship Canada).
André Baril, whose affidavit was sworn October 11, 2018, is the Senior Director of Refugee Affairs with the Department of Immigration Refugees and Citizenship.
Matthew Dan, whose affidavit was sworn October 12, 2018, is the Assistant Director of the Department of Immigration, Refugees and Citizenship Canada’s Irregular Migration Policy Hub within the Refugee Affairs Branch.
Sharon Spicer, whose affidavit was sworn October 12, 2018, is the Director of Inland Enforcement Operations and Case Management Division for the Canadian Border Services Agency.
Alexandre Bilodeau, whose affidavit was sworn October 11, 2018, is the Assistant Director in the Data Management and Reporting Division of the Research and Evaluation Branch.
Daniel Badour, whose affidavit was sworn October 11, 2018, is the Director of the Asylum Seeker Task Force with the Canada Border Services Agency.
Laura Soskin, whose affidavit was sworn October 12, 2018, is a Paralegal with the Department of Justice in Toronto.
Rebecca Louis, whose affidavit was sworn October 9, 2018, was an articling student with the Department of Justice at the time she sworn her affidavit.
[34] The Respondents rely upon the following Expert Affidavits:
Stephen Yale-Loerh, whose affidavit was sworn October 12, 2018, is a Professor at Cornell Law School and is counsel at Miller Mayer, LLP, in Ithaca, New York where he practises immigration law.
Kay Hailbronner, whose affidavit was sworn October 10, 2018, is a Professor Emeritus of Public Law, Public International Law and European Law at the University of Konstanz in Germany.
VII. PRELIMINARY MATTERS
[35] There are two preliminary matters. One is the Respondents’ objection to the Court considering the expert evidence of Professors Anker and Musalo. The other is the request by the Applicant Ms. Mustefa to raise a new procedural fairness argument.
Expert Evidence of Deborah Anker and Karen Musalo
[36] At the opening of their submissions, the Respondents reiterated their objections to the Court considering the expert evidence of Professor Anker. The Respondents argue that Professor Anker’s public advocacy statements on the issues raised in these applications affect the objectivity of her evidence. The Respondents do not identify specific statements or specific paragraphs in her affidavits that they object to and seek to strike, but rather they argue that her evidence overall lacks objectivity.
[37] Professor Anker is a law professor at Harvard University. She is the co-founder of the Harvard Immigration and Refugee Clinical Program and has authored a treatise on US asylum law. She is offered as an expert on US asylum law. The Respondents do not dispute her qualifications. Their objection arises from the public positions she has taken in criticizing Canada’s continued adherence to the STCA. They point to a radio interview and a letter sent by Professor Anker to the Prime Minister encouraging Canada to repeal the STCA with the US. The Respondents argue that, in so doing, she has engaged in advocacy and therefore cannot be considered an objective witness.
[38] The objections to Professors Anker’s evidence were addressed in a Motion heard on February 21, 2019. At that time, I dismissed the Respondent’s Motion (Canadian Council for Refugees et al v Canada (Citizenship and Immigration), 2019 FC 285 at para 36) [CCR 2019]. I concluded that Professor Anker’s comments in the media about the Canadian refugee system were not the areas for which she was being tendered as an expert witness. Her expertise is the US asylum system. As a result, her expert evidence can be considered apart from her personal views (CCR 2019 at para 36). I further noted that any issues with the objectivity of her evidence would go to the weight of her evidence rather than its admissibility (CCR 2019 at para 37).
[39] With respect to Professor Musalo, the Respondents also argue that she has made public statements in her role with the Centre for Gender and Refugee Studies that are inconsistent with the statements contained in her Affidavits and therefore her evidence is not reliable. Again, the Respondents do not dispute her qualifications and do not identify specific statements or paragraphs in her affidavits that they seek to strike, but argue that the general content of her affidavits does not align with her public statements.
[40] Having had the opportunity to consider the evidence of both experts in the context of the issues raised on these applications, and with the benefit of a full record from all parties, I maintain my position to allow their evidence. Given that the Respondents have not identified specific portions of the evidence that they seek to strike, it is not appropriate to strike the evidence in its entirety. Professor Anker has engaged in public lobbying with respect to the plight of asylum-seekers. On these Applications, she is offered as an expert on US asylum law and international refugee law. Professor Anker’s evidence as contained in her affidavits of October 6, 2017 and June 26, 2018, is accepted for the factual detail provided. Her public statements and her opinion regarding the appropriateness of the STCA are irrelevant.
[41] The Respondents’ objection to Professor Musalo’s evidence is weaker. They claim that the public statements of her organization regarding the likelihood of success of asylum claims in the US system are in direct contradiction to the evidence provided in her affidavits. Specifically, the Respondents claim that the Professor’s website suggests that asylum claims can be successfully pursued, whereas in her affidavits (September 22, 2017 and June 25, 2018) she claims that the likelihood of success is low. The challenge with how the Respondents have raised their objections to this evidence, is that they fail to specify what portions or what statements they take issue with. I agree with the Respondents that broad categorical statements on the success of asylum claims within the US system is irrelevant and I will therefore disregard these statements.
[42] Both Professors Anker and Musalo signed the expert witness certificate under the Federal Courts Rules which specifically states they “have read the Code of Conduct for Expert Witnesses set out in the schedule to the Federal Courts Rules and agree to be bound by it.” The Code of Conduct provides:
[a]n expert witness named to provide a report for use as evidence, or to testify in a proceeding, has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise.
… This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert is to be independent and objective. An expert is not an advocate for a party.
[43] In White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess], the Supreme Court of Canada held that the role of an expert is to assist the Court, not to advocate. The Court further noted that experts “have a special duty to the court to provide fair, objective and non-partisan assistance” (White Burgess at para 2).
[44] Having considered Professors Anker and Musalo’s evidence in the full context of these Applications, I accept their evidence. I acknowledge that they are engaged in broader forms of advocacy in support of asylum causes. However, for the present Applications, their evidence was based on their professional views of the US asylum system and how it functions, or fails to function. It is in that regard that their evidence and opinions are of assistance to the Court.
[45] Given the failure of the Respondents to clearly articulate their specific objections, and considering the test outlined by the Supreme Court in White Burgess, I accept their evidence subject to the qualifications noted.
Ms. Mustefa’s Request to Make New Arguments
[46] At the hearing, Ms. Mustefa’s lawyers requested leave to amend her Application to make new procedural fairness arguments. I declined this request. As I stated at the hearing, these Applications had been ongoing for a number of years, accordingly, there was ample time to identify and raise these arguments earlier. In my view, it was not fair to the Respondents, or in the interests of justice, to allow Ms. Mustefa to raise procedural fairness arguments at the hearing of this judicial review application.
VIII. ISSUES
[47] The following are the issues for determination:
Is s. 159.3 of the Regulations ultra vires?
Does the STCA infringe section 7 of the Charter?
Is the infringement justified under section 1 of the Charter?
Does the STCA infringe section 15 of the Charter?
Should the Court decline to consider Ms. Mustefa’s application?
Do certified questions arise?
IX. STANDARD OF REVIEW
[48] After hearing these applications, the Supreme Court released its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Accordingly, I invited the parties to make post-hearing submissions on the impact of Vavilov on the applicable standard of review.
[49] The Applicants assert that Vavilov strengthens their position that s. 159.3 of the Regulations is ultra vires for two reasons. First, because the Supreme Court held that external constraints limit the range of reasonable outcomes of administrative decisions (Vavilov at para 90). Second, they argue that, even when applying a deferential standard, interpretations that are contrary to the legislative purpose of the grant of power, contrary to the overarching purpose of the Act, or contrary to Canada’s international obligations will necessarily be unreasonable (Vavilov at paras 114 and 120).
[50] The Respondents say that Vavilov does not change their position on the vires issue, because, according to the Respondents, the Court cannot consider evidence that post-dates the promulgation of s. 159.3 of the Regulations. Therefore, the standard of review question is irrelevant as the issue is resolved before it is necessary to consider the appropriate standard of review.
[51] Taking these positions into consideration, and the direction provided in Vavilov, in my view, the standard of review for the vires considerations is reasonableness. Vavilov at para 68 states:
Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker - perhaps limiting it [to] one…
[52] The issue of whether s. 159.3 of the Regulations and s. 101(1)(e) of the IRPA violate the Charter will be considered on a correctness standard (Vavilov at para 57).
X. ANALYSIS
Is Section 159.3 of the Regulations Ultra Vires?
Statutory and Convention Provisions
[53] The relevant provisions of the IRPA are:
3...3 Application
This Act is to be construed and applied in a manner that
3…3 Interprétation et mise en oeuvre
L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
…
…
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada;
…
…
(f) complies with international human rights instruments to which Canada is signatory
f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire.
…
…
Report on Inadmissibility
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Rapport d’interdiction de territoire
44 (1) S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
Ineligibility
101 (1) A claim is ineligible to be referred to the Refugee Protection Division if
Irrecevabilité
101 (1) La demande est irrecevable dans les cas suivants :
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…
(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;
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;
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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
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) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;
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;
102 (2) The following factors are to be considered in designating a country under paragraph (1)(a):
102 (2) Il est tenu compte des facteurs suivants en vue de la désignation des pays :
(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;
a) le fait que ces pays sont parties à la Convention sur les réfugiés et à la Convention contre la torture;
(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against 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) its human rights record; and
c) leurs antécédents en matière de respect des droits de la personne;
(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.
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.
102 (3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.
102 (3) Le gouverneur en conseil assure le suivi de l’examen des facteurs à l’égard de chacun des pays désignés.
[54] Section 159.3 of the IRPR states:
Designation - United States
Désignation - États-Unis
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.
[55] Article 33 of the Refugee Convention provides:
PROHIBITION OF EXPLUSION OR RETUN (“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.
[56] Article 3 of the Convention against Torture states:
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.
[57] These provisions were considered extensively in Canadian Council for Refugees v Canada, 2007 FC 1262 [CCR 2007] and Canada v Canadian Council for Refugees, 2008 FCA 229 [CCR 2008].
Applicants’ Submissions
[58] The Applicants argue that s. 159.3 of the Regulations is ultra vires because the ongoing designation of the US as a safe third country is inconsistent with the statutory purpose and the statutory grant of power. Further, they argue that the statutory conditions precedent for the ongoing designation of the US as a safe third country have not been satisfied.
Designation Inconsistent with Statutory Purpose and Grant of Power
[59] The Applicants submit that developments in the law since the FCA decision in CCR 2008 allow this Court to reconsider the vires issue. They rely upon West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 [West F